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n 

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HARVARD  LAW  SCHOOL 
LIBRARY 

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^^^^H 

■      k 

INDIAN  PENAL  CODE, ^ 


(ACT  XLV.  OF  I860,) 


WITHNOTES 


.^ 


BY 


WTMOBtJAN  AND  £  G?£&PHEBSON,  ESQRS. 


S^XlXblSTSXtS  Jt-T  iij^-vr. 


CALCUTTA : 
G.  C.  HAY  &  CO,  56,  COSSITOLLAH: 

AND 

2,  CRESCBNT  PLACE,  BLACKPRIARS,  LONDON. 

XN 

663 


PBINTID  AT  THE  BAPtlST  MISSION   PBESS. 


f/&c ,  iu^ie'  9^  /f^ 


\ 

\ 

■  \ 


PREFACE. 


The  Penal  Code  was  originally  prepared  by  the 
Indian  Law  Commissioners  when  Mr.  Macaulay  was 
the  President  of  that  body,  and  was  laid  before  the 
Governor-General  of  India  in  Council  in  the  year 
1837.  The  Code  was  enacted  by  the  Legislative 
Council  in  the  year  1860,  with  some  *  important 
changes,  but  without  any  substantial  alteration  in 
the  frame-work  or  phraseology  of  the  original  Code, 

Until  the  law  has  received  a  construction  from 
those  who  have  authority  to  expound  it,  it  is  hoped 
that  these  notes  on  the  text  of  the  Code  may  be 
foimd  useful. 

They  are,  for  the  most  part,  compiled  from  the 
following  authorities : — 

The  notes  in  which  the  framers  of  the  original  Code 
explain  the  principles  adopted  in  its  preparation ; 

T^e  Reports  (1846-1847)  of  the  Indian  Law 
Commissioners,  Messrs.  Cameron  and  Eliott,  on  the 
original  Code ; 


r 


VI  PREFACE. 

Notes  on  the  first  of  these  Reports,  by  Mr.  J.  M. 
Macleod ; 

The  several  Reports  of  Her  Majesty's  Criminal  Law 
Commissioners ;  and  various  treatises  on  Criminal  Law 
by  English  and  American  authors. 


CONTi»TTS. 


Chapter  Page 

I. — Introduction 3 

II. — General  Explanations    12 

III.— Of  Punishments    32 

IV. — General  Exceptions 63 

v.— Of  Abetment 12 

VI.— Of  Offences  against  the  State 99 

VII. — Of  Offences  relating  to  the  Army  and  Navy 109 

VIIL— Of  Offences  against  the  Public  Tranquillity 118 

IX, — Of  Offences  by  or  relating  to  Public  Servants   133 

X. — Of  Contempts  of  the  Lawful  Authority  of  Public 

Servants    143 

XI. — Of  False  E  vidence  and  Offences  against  Public  Justice  1 56 

XII. — Of  Offences  relating  to  Coin  and  Government  Stamps  185 

XIII. — Of  Offences  relating  to  Weights  and  Measures  201 

XrV.— Of  Offences  affecting  the  Public  Health,  Safety, 

Convenience,  Decency,  and  Morab 203 

XV,— Of  Offences  relating  to  Religion 217 

XVI.— Of  Offences  affecting  the  Human  Body  221 

XVIL— Of  Offences  against  Property  827 

XVUI. — Of  Offences  relating  to  Documents  and  to  Trade 

or  Property-marks    409 

XIX — Of  the  Criminal  Breach  of  Contracts  of  Service 428 

XX^-Of  Offences  relating  to  Marriage 432 

XXL— Of  Defamation 439 

XXII. — Of  Criminal  Intimidation,  Insult,  and  Annoyance...  448 

XXIII, — Of  Attempts  to  commit  Offences 454 


ACT  No.  XLV.  OP  I860: 


THE 

INDIAN    PENAL    CODE. 


In  attempting  to  place  the  whole  law  of  a  country  in  a 
«rritten  form  before  those  who  are  to  administer^  and  those 
who  are  to  obey  it^  snch  a  mutoal  relation  will  be  found  to 
exist  between  the  several  parts  of  the  law^  that  no  single  and 
separata  part  can  be  put  into  writing  in  a  perfect  form,  while 
the  other  parts  remain  imperfect.  That  portion,  be  it  what  it 
may,  which  is  selected  to  be  first  formed  into  a  Code,  with 
whatever  deamess  and  precision  it  may  be  expressed  and 
arranged,  must  necessarily  partake,  to  a  considerable  extent, 
of  the  imcertainty  and  obscurity  in  which  other  portions  are 
still  left. 

Such  is  the  relation  between  law  generally  and  that  depart- 
ment of  it  which  defines  ofiences  and  punishes  them,  that 
uncertainties  in  other  portions  of  the  law  must  especially 
be  felt,  if  the  criminals  branch  is  the  one  first  selected  to  be 
formed  into  a  Code.  For,  in  every  system  of  law,  the  depart- 
ment which  contains  the  penal  provisions  of  the  law  is  added 
as  a  guard  to  the  rest  of  the  system,  the  existence  of  which,  in 
some  form  or  other,  is  assumed.  A  Penal  Code  assumes  that 
there  exist  laws  creating  and  defining  rights,  imposing  duties, 
and  providing  means  for  the  protection  and  enforcement  of 
these  rights  and  duties;  and  that  what  is  commanded  or 
authorized  by  these  laws  may  well  be  ascertained.     The  provi- 


2  INTEODUCTIOK. 

siond  of  a  Penal  Code  are  only  some  of  the  means  of  compassing' 
the  ends  of  substantive  laws,  which  are  the  laws  that  define 
civil  rights  and  duties.  The .  rights,  duties,  and  powers  which 
these  laws  create  are  secured  by  the  penal  law^  which  may 
be  regarded  as  a  part  of  the  subsidiary  law  for  causicgf  the 
principal  laws  to  be  observed  and  executed.  Some  acts  in 
breach  of  these  principal  laws  are  thought  fit,  on  account  of  the 
mischievous  consequences  they  have  a  natural  tendency  to 
produce^  to  be  constituted  crimes  or  ofiences ;  and  to  pat  a 
stop  to  such  consequences,  there  is  annexed  to  every  sach  act 
a  certain  artificial  consequence  consisting  of  punishment  to  be 
infiicted  on  the  doer. 

A  Penal  Code,  that  is  a  Code  of  oflTences  and  punishments,  is 
then  an  auxiliary  to  the  other  departments  of  the  law.  H 
many  important  questions  concerning  rights  and  duties  are 
undetermined  by  the  Civil  law,  it  must  often  be  doubtful 
whether  the  provisions  of  the  Penal  law  do  or  do  not  apply  to 
a  particular  case :  we  cannot  know  correctly  if  any  given  act 
is  to  be  accounted  an  ofience  under  the  latter,  while  it  is  uncer- 
tain what  recognition  the  Civil  law  gives  to  the  right  which 
has  been  infringed.  A  Penal  Code  therefore  necessarily 
partakes  of  the  vagueness  and  uncertainty  of  the  rest  of  the 
law.  It  cannot  be  clear  and  explicit  while  the  substantive 
Civil  law  and  the  law  of  procedure  are  dark  and  confused. 
While  the  rights  of  individuals  and  the  powers  of  public  func- 
tionaries are  uncertain,  it  cannot  always  be  certain  whether 
those  rights  have  been  attacked  or  tho<le  powers  exceeded. 

But  if  a  Code  of  ofiences  and  punishments  is  necessarily  im- 
perfect while  other  parts  of  a  system  of  law  are  so,  its  defects 
may,  in  some  degree,  be  removed  by  the  mode  in  which  the  defi- 
nitions of  ofiences  are  framed.  Seeing  that  this  portion  of  adjec- 
tive law  should  have  regard  rather  to  the  motives  and  intentions 
of  men's  acts  than  to  their  strict  conformity  to  law  or  to  any 
loss  or  damage  wrongfully  caused  by  them,  it  may  be  possible 
to  define  an  offence  in  such  a  way  as  to  avoid  nice  distinctions 


PREAMBLE.  3 

of  substantive  Civil  law>  and  to  provide  panishments  for  grave 
infractions  of  rights  without  encountering  difficult  questions 
concerning  the  precise  nature  of  those  rights,  or  the  things  to 
which  they  extend,  or  the  persons  in  whom  they  are  vested. 

The  Indian  Penal  Code,  although  it  comes  into  operation 
without  the  aid  of  a  Code  defining  Civil  rights,  has  this  advan- 
tage that  the  law  of  procedure  both  in  Civil  and  Criminal  cases 
has  been,  in  great  measure,  fixed  and  codified. 

Many  questions  will  doubtless  still  arise,  occasioned  by  the 
uncertainty  of  other  parts  of  the  law,  to  perplex  the  criminal 
tribunals :  but  it  will  be  foand  that  the  definitions  and  other 
provisions  of  this  Code  are  framed  to  obviate,  as  much  as  may 
be,  such  difficulties. 


Chapter  I. 

Whereas  it  is  expedient  to  provide  a  General  Penal 

Preamble.  ^^^^  ^^^  British  India ;  It  is 

enacted  as  follows  : — 

1.  This  Act  shall  be  called  The  Indian  Penal 

Title  and  extent  of  opera-'     CODE,     and    shall    take    ejffcct 
tlonoftheOode.  ^^j^    ^^^    fj.Qjjl    ^hc    Ist  day    of 

[January  1862*]  throughout  the  whole  of  the  Terri- 
tories which  are  or  may  become  vested  in  her  Majesty 
by  the  Statute  21  and  22  Victoria,  chapter  106, 
entitled  "An  Act  for  the  better  Government  of 
India/*  except  the  Settlement  of  Prince  of  Wales* 
Island,  Singapore  and  Malacca. 

2.  Every  person  shall  be  liable  to   punishment 
-.    , ,       ^  r  4^  under  this  Code  and  not  other- 

Ftmiahment  of  offences  com-  •        ^  ,  •     . 

mitted  within  the  Indian  Ter-  WISO  lOr  CVerV  aCt  Or  OmiSSlOU 
ntories.  .  i         it  •   • 

contrary  to  the  provisions 
thereof,  of  which  he  shall  be  guilty  within  the  said 
Territories  on  or  after  the  said  1st  day  of  [Jan,  1862*] 

»  SeeActNo.  VI.  ofl861. 
b2 


4        ,  CHAPTER  I. 

These  sections  declare  the  extent  of  the  ^  operation  of  the 
Code  with  respect  to  time,  place,  and  person. 

After  the  first  of  Jannary  1862,  all  ofiences  contained  in 
this  Code  are  pnnishable,  whoever  the  offender  may  be.  Every 
person  is  made  liable  to  punishment,  without  distinction  of 
nation,  rank,  caste  or  creed,  provided  only  the  offence  with 
which  he  is  charged  has  been  committed  in  some  part  of 
British  India.* 

The  powers  of  the  Indian  Legislature  extend  to  certain 
specified  persons  and  places.  The  Act  of  Parliament  (3  and 
4,  Will.  4,  c.  85)  which  defines  this  legislative  power,  authorizes 
the  Governor-General  in  Council  "to  make  laws  and  regu^ 
lations  for  all  persons,  whether  British  or  native,  foreigners  or 
others,  and  for  all  Courts  of  Justice,  whether  established  by  His 
Majesty's  Charters  or  otherwise,  and  the  jurisdiction  thefeof^ 
and  for  all  places  and  things  whatsoever,  within  and  through- 
out the  whole  and  every  part  of  the  said  (British)  territo- 


*  As  to  persons  of  high  rank,  the  Indian  Law  Oommissioners  (the  authors  of 
this  Code)  stated,  **  Tonr  Lordship  in  Connoil  will  see  that  we  have  not  proposed 
to  except  from  the  operation  of  this  Code  any  of  the  ancient  Sovereign  houses 
of  India  residing  within  the  Company's  territories.  Whether  any  such  excep- 
tion onght  to  be  made,  is  a  qnestion  which,  without  more  accurate  knowledge 
than  we  possess,  we  could  not  venture  to  decidli.  We  will  only  beg  permission 
most  respectftOly  to  observe  that  every  such  exception  is  an  evil :  that  it  is  an 
evil  that  any  man  should  be  above  the  law ; — that  it  is  a  still  greater  evil  that 
the  public  should  be  taught  to  regard  as  a  high  and  enviable  distinction  the 
privilege  of  being  above  the  law ; — that  the  longer  such  privileges  are  suffered 
to  last,  the  more  difficult  it  is  to  take  them  away  ;-^-and  that  we  greatly  doubt 
whether  any  consideration,  except  that  of  public  faith  solemnly  pledged,  de- 
serves to  be  weighed  against  the  advantages  of  equal  justice. 

**  The  peculiar  state  of  public  feeling  in  this  countiy  may  render  it  advisable 
to  frame  the  law  of  procedure  in  such  a  manner  that  families  of  high  rank  may 
be  dispensed,  as  far  as  possible,  from  the  necessity  of  performing  acts  which  are 
here  regarded,  however  unreasonably,  as  humiliating.  But  though  it  may  be 
proper  to  make  wide  distinctions  as  respects  form,  there  ought  in  our  opinion, 
to  be,  as  respects  substance,  no  distinctions  except  those  which  the  (Government 
is  bound  by  express  engagements  to  make.  That  a  man  of  rank  should  be 
examined  with  particulcur  ceremonies,  or  in  a  particular  place,  may  in  the 
present  state  of  Indian  Society  be  highly  expedient.  But  that  a  man  of  any 
rank  should  be  allowed  to  commit  crimes  with  impunity  must,  in  every  state 
of  society,  be  most  pernicious." 

It  will  perhaps  be  found  that  the  position  of  those  persons  who  are  privileged 
by  treaty  or  otherwise  differs  from  that  of  other  persons  rather  in  regard  to 
Ibrm  of  procedure  than  in  actual  liability.  See  Acts  XXYIL  of  1854^  XXXVII. 
of  1858,^ 


EXTUA-TERBITORIAL  OPEUATIONr  5 

ries.'^  (s.  43).  These  are  the  defined  limits  of  the  legislative 
powor. 

Accordingly  "within  and  throughout''  British  India,  the 
Penal  Code  is  applicable  to  all  persons  thus  made  subject  to 
tills  authority  of  the  Oovemor-General  of  India  in  Council. 
Whether  such  persons  are  the  subjects  of  Her  Majesty  or  the 
subjects  of  a  foreign  stale,  they  all  owe  obedience  to  the  law. 
A  foreigner  who  enters  the  British  territories  and  thus  accepts 
the  protection  of  our  laws,  virtually  gives  an  assurance  of  his 
fidelity  and  obedience  to  them  and  submits  himself  to  their 
operation. 

All  existing  penal  laws  whatsoever,  except  such  as  are  referred 
to  in  the  last  section  of  this  chapter,  are  superseded  by  the 
Code  to  this  extent,  that  persons  liable  to  punishment  under 
any  of  the  provisions  of  the  Code  cannot  be  punished  by  any 
other  law.  The  words  ''and  not  otherwise'*  seem  virtually 
to  repeal  all  former  laws  for  the  punishment  of  any  offence 
which  is  made  punishable  by  this  law.  But  if  there  are  acts 
or  omissions  made  penal  by  any  existing  law,  and  no  provision 
of  this  Code  is  found  to  reach  them,  that  law  ¥rill  continue 
at  present  in  force. 

Offences  committed  prior  to  the  1st  of  January,  1862,  will 
not  come  under  the  Code,  at  whatever  time  the  offender  may 
be  arrested  or  tried. . 

3.    Any  person  liable,  by  any  law  passed  by  tlie 
Poniahmantofoirenoescom.    Govcmor  General  of  India  in 
l^^S^^edVi^ll    CouncU,   to  be  tried  for  an 
Territories.  oflfence  Committed  beyond  the 

limits  of  tbe  said  Territories,  shall  be  dealt  with  ac- 
cording to  the  provisions  of  this  Code  for  any  act 
conmiitted  beyond  the  said  Territories,  in  the  same 
manner  as  if  such  act  had  been  committed  within  the 
said  Territories. 

This  section  relates  to  the  extra-territorial  operation  of  the 
Code.  The  words  "for  any  act*'  Ac.  extend  also  to  illegal 
omissions.     (Section  32). 


6  CHAPTEE  I. 

Many  offences^  such  as  Forgery,  Offences  relating  to  Coiu 
and  Government  Stamps,  Offences  against  the  State,  &c.,  may  be 
committed  beyond  the  limits  of  the  British  Territories,  by  per- 
sons subject  to  our  laws,  and  it  is  necessary  to  provide  for  their 
punishment.  It  was  a  principle  of  the  old  Regulations  to  make 
punishable,  by  trial  within  the  East  India  Company^s  territories, 
subjects  of  the  Government  committing  crimes  beyond  the 
frontier,  whether  apprehended  within  or  without  the  frontier. 
Those  Regulations  which  were  specially  confined  to  native  sub- 
jects and  aliens  living  for  six  months  within  British  territories, 
were  repealed  by  Act  I.  of  1849,  which  enacts  (Section  2)  that 
"  All  subjects  of  the  British  Government,  and  also  all  persons  in 
the  Civil  or  Military  Service  of  the  said  Government,  while  actu- 
ally in  such  service,  and  for  six  months  afterwards,  and  also  all 
persons  who  shall  have  dwelt  for  six  months  within  the  British 
Territories  under  the  Government  of  the  East  India  Company, 
subject  to  the  laws  of  the  said  Territories,  who  shall  be  appre- 
hended within  the  said  Territories,  or  delivered  into  the  custody 
of  a  Magistrate  within  the  said  Territories,  wherever  appre- 
hended, shall  be  amenable  to  the  law  for  all  offsnces  committed 
by  them  within  the  Territory  of  any  Foreign  Prince  or  State  ; 
and  may  be  bailed  or  committed  for  trial  as  hereafter  provided, 
on  the  like  evidence  as  would  Warrant  their  being  held  to  bail 
or  committed  for  the  same  offence,  if  it  had  been  committed 
within  the  British  Territories/' 

Persons  liable  by  this  law  to  be  tried  by  our  Courts  must  be 
'^  dealt  witV  according  to  the  provisions  of  this  Code. 

The  Act  I.  of  1849  applies  to  all  subjects  of  Her  Majesty 
and  to  persons  who,  by  reason  of  having  taken  service  under 
the  Government  or  dwelt  within  the  British  Territories  for  six 
months,  are  considered  as  subject  for  a  time  to  our  laws. 

It  is  by  dwelling  for  six  months  under  British  law,  that  a 
person  becomes  bound  by  that  law  and  amenable  to  our  Courts 
for  an  offence  committed  beyond  the  frontier.  A  man  may 
come  to  India  upon  a  visit,  to  travel,  to  settle  a  particular 
business  or  the  like,  and  the  special  purpose  for  which  he 


EXTRA-TEKRITOBIAL  OPEEATION.  7 

comes  may  keep  him  here  for  six  months ;  bat  he  does  not 
thereby  become  a  dweller  within  British  territories,  so  as  Co  be 
amenable  to  the  jurisdiction  of  the  Courts  for  an  offence  com- 
mitted after  his  departure  from  India. 

Onr  Courts  acquire  jurisdiction  under  Act  I.  of  1849,  when 
tlie  offender  is  apprehended  in  British  India  or  is  delivered 
into  the  custody  of  a  Magistrate  here ;  and  when  in  custody,  such 
offender  must  be  "  dealt  with"  according  to  the  nature  of  his 
offence  as  such  offence  is  defined*  and  punished  by  this  Code. 
Thus  any  person  made  amenable  to  the  Courtis  jurisdiction  by 
that  Act  who  commits  in  Nepaul  the  offence  of  counterfeiting 
the  coin  of  the  Government  of  India,  will  be  tried  and  punished 
under  Chapter  XII.  of  this  Code. 

Persons  who  commit  offences  in  those  foreign  territories, 
where  there  are  Courts  of  Justice  appointed  by  the  British 
Government  may,  it  seems,  be  tried  and  punished  for  such 
offences  under  this  Code. 

A  person  brought  by  illegal  violence  or  constraint  within  the 
British  frontier  and  delivered  to  a  Magistrate,  having  com- 
mitted an  offence  beyond  the  frontier,  is,  it  seems,  liable  to 
punishment  under  this  Code  for  any  offence  which  he  may 
commit  during  his  constrained  residence  here ;  and  this  equally 
whether  he  is  a  person  made  amenable  to  our  laws  by  Act  I. 
of  1849  or  a  foreigner.  The  unlawfulness  of  his  detention 
may  justify  certain  acts  done  by  him  for  the  purpose  of  regain- 
ing his  freedom,  but  it  will  not  excuse  him  from  trial  and 
punishment  for  other  distinct  offences ;  nor  will  it  affect  the 
jurisdiction  of  our  Courts  if  he  is  a  person  made  amenable  by 
the  Act. 

4.     Every  servant  of  the  Queen  shall  be  subject  to 
puniBhment  of   offences    puuishment  uudor  tMs  Code 
SWii^  ^th£iT5S?Si^    for  every  act  or  omission  con- 
■"^^  ®***^  trary  to  the  provisions  thereof, 

of  which  he,  whilst  in  such  service,  shall  be  guilty  on  or 
after  the  said  1st  day  of  [January,  1862,]*  within  the 

•  See  Act  No.  VI.  of  1861. 


8  CHAPTER  I. 

dominions  of  any  Prince  or  State  in  allianoe  with  the 
Queen,  by  virtue  of  any  treaty  or  engagement  hereto* 
fore  entered  into  with  the  East  India  Company  or 
which  may  have  been  or  may  hereafter  be  made  in  the 
name  of  the  Queen  by  any  Government  of  India. 

By  the  Charter  Act  (3  and  4  W.  4,  C.  85,  S.  43),  the  Legis- 
lative aathority  of  the  Governor-General  in  Council  is  expressly 
declared  to  extend  to  ''  all  servants  of  the  said  Company  within 
the  dominions  of  Princes  and  States  in  alliance  with  the  said 
Company/^  This  Section  of  the  Code  is  doubtless  enacted 
by  virtue  of  the  authority  given  by  the  words  just  quoted,  the 
language  being  adapted  to  the  change  effected  by  the  late 
Statute  which  transferred  the  Government  of  India  from  the 
East  India  Company  to  the  Queen.  The  words  "  servant  of 
the  Queen^^  are  afterwards  explained.     (Section  14.) 

This  Section  makes  the  Penal  Code  applicable  to  offences 
committed  by  such  persons  within  any  foreign  dominions  which 
are  in  a  state  of  amity  and  of  allia/iice  with  his  country. 
Where  the  alliance  is  by  an  express  treaty  whether  of  a  general 
or  limited  kind  there  can  be  no  question;  and  the  relation 
which  exists  between  the  British  Government  in  India  and  its 
subsidiary  allies  seems  to  constitute  an  alliance  even  in  the 
absence  of  an  express  or  formal  written  treaty.^ 

Many  of  the  persons  to  whom  the  Code  is  made  applicable 
by  this  Section  would  seem  to  come  within  the  general  provi- 
sions of  the  last  preceding  Section.  Although  the  express 
authority  of  the  Charter  Act  extends  only  to  the  power  to  legis- 
late for  Government  servants  in  foreign  states,  the  afiSrmative 
clause  of  that  Statute,  which  has  been  quoted  above,  does  not 
restrain  the  Legislative  Council  of  India  from  making  laws  for 
the  punishment  of  offences  committed  in  foreign  territories  by 
persons  not  in  the  service  of  Government.  The  specification 
of  a  particular  class  {**  servants  of  the  said  Company^^)  as  per- 

•  In  the  Statute  8  and  4  Vict  o.  56,  the  words  "  Native  Princes  or  States  in 
svihordMioAe  alliance  v:\th  or  having  sxibsi^Miry  Weaiie9  with  the  £ast  India 
Company"  occur. 


EXTRA-TERRITOEIAL  OPERATION.  9 

sons  for  whom  the  Governor-General  in  Council  is  authorized 
to  legislate  does  not  affect  the  power  to  legislate  for  persons 
not  of  that  particular  class.  The  clause  in  question  has  been 
considered  to  be  either  perhaps  unnecessary  or  as  meant  to 
remove  all  doubts  as  to  the  power  to  bind  servants  of  the 
Government,  in  the  particular  case  specified,  who  might  not  be 
(as  occasionally  happens)  either  natives  or  subjects  of  the 
British  Territories  or  British  subjects  of  Her  Majesty. 

The  following  Acts  of  Parliament  by  which  persons  are 
liable  to  be  tried  in  India  for  offences  committed  elsewhere 
may  be  mentioned  here. 

The  Statutes  26,  Geo.  3,  0.  57,  (S.  29,)  and  9  Geo.  4, 0.  74, 
(s.  127),  render  amenable  to  the  Supreme*  Courts  in  India  all 
British-bom  subjects  and  all  persons  whatsoever  in  the  service 
of  the  East  India  Company  or  of  the  Crown  for  criminal 
offences  committed  "in  any  of  the  countries  or  part  of  Asia, 
Africa,  or  America,  beyond  the  Cape  of  Good  Hope,  to  the 
Straits  of  Magellan,  within  the  limits  of  the  exclusive  trade 
of  the  said  United  Company.*' 

By  the  Statute  33,  Geo,  3,  C.  52,  S.  67,  it  is  enacted  that 
''  His  Majesty's  subjects,  as  well  servants  of  the  United  Com- 
pany  as  others,  shall  be,  and  are  hereby  declared  to  be,  amen, 
able  to  all  Courts  of  Justice,  both  in  India  and  Great  Britain, 
of  competent  jurisdiction  to  try  offences  committed  in  India, 
for  all  acts,  injuries,  wrongs,  oppressions,  trespasses,  mis- 
demeanors, offences,  and  crimes  whatever,  by  them  or  any  of 
them  done,  or  to  be  done  or  committed,  in  any  of  the  lands  or 
territories  of  any  Native  Prince  or  State,  or  against  their 
persons  or  properties,  or  the  persons  or  properties  of  any  of 
their  subjects  or  people,  in  the  same  manner  as  if  the  same  had 
been  done  or  committed  within  the  territories  directly  subject 
to  and  under  the  British  Government  in  India.'* 

Persons  made  amenable  by  these  laws  to  Courts  in  India  of 

•  By  the  Statute  24  and  25  Vict.  C.  104,  and  the  Royal  Letters  Patent  conati- 
tnting  High  Courts  of  Jndicatare,  the  jurisdiction  of  the  abolished  Supreme 
Courts  is  now  exercised  by  the  High  Courts. 


10  CHAPTER  I. 

competent  jnrisdictioD,  will,  it  seems,  be  dealt  with  according 

to  the  provisions  of  this  Code. 

As  to  offences  committed  at  sea  or  in  places  within  the  juris- 
diction of  the  Courts  of  Admiralty,  various  Statutes  provide  for 
their  trial  and  punishment.  Such  offences  may  be  tried  by  any 
Court  in  India  which  would  have  had  cognizance  of  them  if  com- 
mitted within  the  limits  of  its  ordinary  local  jurisdiction.  But 
if  the  trial  is  by  any  Court  other  than  a  Supremef  Court,  the 
punishment  to  be  awarded  must  be  according  to  the  common 
course  of  English  law  and  not  according  to  this  Code.* 

By  a  late  Statute  (23  and  24  Vict.  Chap.  88,)  which  extends 
to  India  certain  provisions  for  Admiralty  jurisdiction  in  the 
Colonies,  it  is  provided  that  if  any  person  charged  in  India 
with  the  commission  of  any  offence  at  sea  or  within  the 
Admiralty  jurisdiction  shall  ^^at  any  time  before  his  trial 
make  it  appear  to  the  Court  exercising  criminal  jurisdiction 
in  the  place  whore  he  is  so  charged  or  brought  for  trial,' 
that  in  case  the  offence  charged  had  been  committed  in  such 
place  he  could  have  been  tried  only  in  the  Supreme  Court 
of  one  of  the  three  Presidencies  in  India,  and  claim  to  be  tried 
by  such  a  Supreme  Court  accordingly,  the  said  Court  exer- 
cising criminal  jurisdiction  as  aforesaid  shall  certify  the  fact 
and  claim  to  the  Governor  of  such  place  or  Chief  Local  Au- 
thority thereof,  and  such  Governor  or  Chief  Local  Authority 
thereupon  shall  order  and  cause  the  person  charged  to  be  sent 
in  custody  to  such  one  of  the  Presidencies  as  such  Governor 
shall  think  fit  for  trial  before  the  Supreme  Court  of  such  Pre- 
sidency.'^ The  Supremef  Court  is  then  empowered  to  try  the 
offender  as  if  the  offence  had  been  committed  within  the  limits 
of  the  ordinary  jurisdiction  of  such  Court. 

By  the  Stat.  9,  Geo.  4,  Chap.  74,  (an  act  for  improving  the 
administration  of  criminal  justice  in  the  East  Indies)  Sec.  25,  it 
is  enacted  that  all  offences  prosecuted  in  any  of  His  Majesty's 
Courts  of  Admiralty  shall  be  subject  to  the  same  punishment  as 

•  Statutes  12  and  18  Vict.  Chap.  96, 18  and  19  Vict.  Chap.  91,  s.  21. 
t  Seo  note  to  page  9. 


LAWS  NOT  AFFECTED  BY  THIS  CODE.      11 

if  such  offences  had  been  committed  upon  the  land.  Offences 
committed  at  sea^  if  the  offenders  are  tried  by  one  of  the  Su- 
preme* Courts  may^  it  seems^  now  be  punished  under  this  Code. 
As  to  persons  who^  not  being  amenable  by  any  law  to  the 
jurisdiction  of  our  Courts,  commit  offences  beyond  the  limits  of 
the  British  territories  and  afterwards  take  refuge  or  are  found 
within  those  limits,  provision  has  been  made  by  law  (Act  VII. 
of  1854,)  for  their  apprehension  and  delivery  up  to  justice. 

5.  Notliiiig  in  this  Act  is  intended  to  repeal,  vary. 
Certain  uwB  not  to  be  aflrect-     suspend,  or  affect  any  of  the 
ed  by  thi.  Act.  provisions  of  the  Statute  3  and 

4,  William  IV.  chapter  85,  or  of  any  Act  of  Parlia- 
ment passed  after  that  Statute  in  any  wise  affecting 
the  East  India  Company,  or  the  said  Territories,  or 
the  inhabitants  thereof;  or  any  of  the  provisions  of 
any  Act  for  punishing  mutiny  and  desertion  of  Officers 
and  Soldiers,  in  the  service  of  Her  Majesty  or  of  the 
EastIndiaCompany,or  of  any  Act  for  the  Government 
of  the  Indian  Navy,  or  of  any  special  or  local  law. 

The  Section  (S.  43,)  already  quoted,  of  the  3  and  4,  W.  4, 
C.  85,  which  defines  the  Legislative  power  of  the  Governor- 
General  in  Council  has  the  following  exceptions : — 

"  Save  and  except  that  the  said  Governor-General  in  Council 
shall  not  have  the  power  of  making  any  laws  or  regulations 
which  shall  in  any  way  repeal,  vary,  suspend,  or  affect  any  of 
the  provisions  of  this  act,  or  any  of  the  provisions  of  the  acts 
for  punishing  mutiny  and  desertion  of  officers  and  soldiers, 
whether  in  the  service  of  his  Majesty  or  the  said  Company,  or 
any  provisions  of  any  act  hereafter  to  be  passed  in  any  wise 
affecting  the  said  Company,  or  the  said  territories,  or  the 
inhabitants  thereof,  or  any  laws  or  regulations  which  shall, 
in  any  way,  affect  any  prerogative  of  the  Crown,  or  the  au- 
thority of  Parhament,  or  the  constitution  or  rights  of  the  said 
Company,  or  any  part  of  the  unwritten  laws  or  constitution  of 
the  United  Kingdom  of  Great  Britain  and  Ireland,  whereon 

*  See  note  to  page  9. 

c  2 


12  CHAPTBE  II. 

may  depend,  in  any  degree,  the  allegiance  of  any  persons  to 
the  Crown  of  the  United  Kingdom,  or  the  sovereignty  or  do- 
zninion  of  the  said  Crown  over  any  part  of  the  said  territories/* 

It  is  hereafter  explained  what  is  meant  by  '^  special'*  and 
''  local**  laws.     (Sections  41,  42.) 

The  laws  relating  to  the  Army  and  Navy  which  are  here 
referred  to  are  the  several  Acts  and  Articles  of  War,  from  time 
to  time  passed,  to  secure  discipline  and  to  punish  Military  and 
other  offences.  Nothing  in  this  Code  affects  any  of  their  pro* 
visions.  For  the  Native  Army  therefore  the  Penal  Code 
which  is  provided  by  Act  XXIX.  of  1861  will  continue  in  force. 
For  the  British  Army  the  Mutiny  Acts  and  Articles  of  War 
are  the  laws  which  must  irtill  guide  Courts  Martial  in  the  cases 
in  which  those  Courts  are  authorized  to  supply  the  place  of  the 
ordinary  criminal  Courts  and  to  try  soldiers  for  crimes.  But 
it  is  to  be  observed  that  Courts  Martial  in  India  are  in  such 
cases  bound  by  the  Articles  of  War  to  conform  in  their  sen- 
tences to  the  Common  and  Statute  law  of  England  as  modified 
by  laws  applicable  to  India. 

Chapter  II, 
GENERAL  EXPLANATIONS, 

One  peculiarity  in  the  manner  in  which  this  Code  is  framed 
may  here  be  noticed.  To  facilitate  the  understanding  of  the 
Code,  Illustrations  are  used  which  exhibit  the  law  in  full  action 
and  shew  what  its  effects  will  be  on  the  events  of  common  life. 

A  law  may  be  expressed  in  language  which  is  either  too  prolix 
or  too  concise.  If  an  attempt  be  made  by  an  enumeration  of 
species  to  avoid  the  obscurity  which  arises  from  the  use  of 
general  or  abstract  terms,  doubts  are  created  as  to  the  compre- 
hensiveness of  the  law :  on  the  other  band,  vague  and  extensive 
terms,  if  unexplained,  convey  no  meaning  to  the  reader,  or  are 
obscure  and  frequently  ambiguous. 

To  unite  conciseness  with  simplicity  in  definitions  intended 
to  include  largo  classes  of  things,  and  to  exclude  others  very 


GENERAL   EXPLANATIONS.  13 

similar  to  many  of  those  which  are  included,  will  often  be 
utterly  impossible.  The  best  coarse  under  such  circumstances 
appears  to  be  that  which  the  framers  of  this  Code  adopted,  that 
if,  to  draw  the  text  of  the  law  in  abstract  and  concise  language, 
»nd  to  give  at  the  same  time  an  authoritative  commentary  on 
^e  text  in  the  shape  of  Illustrations.  If  a  definition  be  follow- 
ed by  a  coUectiQn  of  cases  falling  under  it  and  of  cases  which, 
though  at  first  they  appear  to  fall  under  it,  do  not  really  fall 
under  it,  the  definition  and  the  reasons  which  led  to  the  adop- 
tion of  it  will  be  readily  understood.  The  Illustrations  will  lead 
the  mind  of  the  student  through  the  same  steps  by  which  the 
minds  of  those  who  framed  the  law  proceeded,  and  may  some- 
times shew  him  that  a  phrase  which  may  have  struck  him  as 
uncouth,  or  a  distinction  which  he  may  have  thought  idle,  was 
deliberately  adopted  for  the  purpose  of  including  or  excluding 
a  large  class  of  important  cases. 

Doubts  must  arise  in  practice  respecting  the  interpretation 
of  the  most  skilfully  drawn  laws.  After  a  time  such  doubts  in 
the  interpretation  of  laws  drawn  in  the  usual  mode  are  removed 
by  decisions  of  the  Courts  on  cases  brought  before  them  and 
the  meaning  of  the  Legislature  is  reached.  The  Illustrations 
of  the  Code  are  cases  decided  by  the  Legislature,  decided  con- 
temporaneously with  the  enactment  of  the  law,  and  they  are 
authentic  declarations  of  the  scope  and  purpose  of  the  law. 

The  function  of  the  Illustrations  is,  as  their  name  indicates, 
to  illustrate.  They  are  not  intended  to  supply  any  omission  in' 
the  written  law  or  to  put  a  strain  on  it.  They  make  nothing 
law  which  would  not  be  law  without  them.  They  illustrate 
the  law,  and  as  they  do  this  with  full  Legislative  authority  they 
have  all  the  force  of  law  :  but  the  whole  law  so  illustrated  by 
them,  must  be  considered  to  be  contained  in  the  definitions  and 
enacting  clauses  of  the  Code. 

It  has  been  objected,  that  if  the  case  given  by  way  of  illustra- 
tion borders  upon  the  verge  of  the  law  or  does  not  fall  clearly 
within  its  terms,  it  either  renders  the  law  doubtful,  or  the 
example  itself  constitutes  the  law ;— that  there  may  possibly 


14  CHAPTEB  II. 

arise  two  definitions  of  the  same  thing ; — and  that  inductions 
and  analogies  may  be  drawn  from  the  Illustrations  which  seem 
inconsistent  with  the  text  of  the  law.  If  some  latent  incon- 
sistency should  thus  be  discovered  between  the  definitions  and 
the  Illustrations  of  the  Code^  it  must  be  borne  in  mind^  that^ 
although  the  Illustrations  are  acts  of  interpretation  by  Legis- 
lative authority  in  those  precise  circumstances  which  constitute 
the  examples^  they  cannot  be  used  to  alter  the  law  which  they 
are  intended  to  interpret.  Legislative  like  judicial  interpreta- 
tion may  be  deceptive  and  under  the  guise  of  expounding  the 
text  of  the  law  may  really  add  to  or  alter  it ;  but  the  Illustra- 
tions must  in  no  case  be  used  to  contradict  by  inference  or 
otherwise  the  text  of  the  Code.  They  have  the  force  of  a 
declaratory  Law  in  the  very  cases  supposed ;  if  the  example 
given  falls  clearly  within  the  terms  of  thQ  law,  the  Illustration 
is  but  a  needless  repetition  of  what  the  law  has  already  expli- 
citly enacted ;  if  the  Illustrations  are,  as  it  seems  they  ought 
to  be,  cases  on  the  verge  of  the  law,  they  resemble  so  many 
boundary  marks  to  define  distinctly  the  limits  of  the  law  in  the 
precise  cases  put,  and  by  inference  in  all  other  cases  more  un- 
equivocally within  the  scope  of  the  law.  They  have  no  force  to 
contradict  or  to  add  to  the  text  of  the  law. 

This  Chapter  of  Oeneral  Explanations  (so  called  to  distin- 
guish them  from  the  explanations  which  follow  particular 
sections  of  the  Code)  is  a  key  to  the  interpretation  of  the  whole 
Code.  The  leading  terms  used  are  here  defined  and  explained^ 
and  the  meanings  thus  announced  are  steadily  adhered  to 
throughout  the  subsequent  chapters. 

It  cannot  be  too  much  impressed  on  those  whose  duty  it  will  be 
to  administer  this  Code  that  without  careful  attention  to  the  two 
chapters  of  "  General  Explanations''  and  "  General  Exceptions'' 
the  full  meaning  of  the  other  portions  of  the  Code  cannot  be 
ascertained;  No  judicial  officer  should  fail  constantly  to  recur 
to  these  chapters  to  ascertain  how  they  affect  the  sense  of  the 
clause  of  the  Penal  Code  which  he  may  be  about  to  apply.  Until 
their  contents  are  fixed  in  hi3  recollection,  he  will  always  incur 


GENERAL  EXPLANATIONS.  15 

the  risk  of  overlooking  some  of  the  Explanations^  Exceptions^ 
and  Limitations  of  these  chapters. 

It  is  scarcely  necessary  to  add  that  this  chapter  is  merely  one 
of  explanation.  The  criminal  quality  of  any  act  which  is  de- 
scribed by  a  word  here  explained^  most  depend  on  the  definition 
in  which  it  occurs.  Thus,  an  effect  may  be  caused  '^  volunta- 
rily*'  within  the  meaning  of  the  explanation  (Section  39),  but  it 
must  still  depend  on  the  particular  definition  or  penal  provision 
in  which  the  word  is  used,  whether  any  offence  has  been  com- 
mitted; for  the  voluntary  causing  an  effect  may  be  made 
criminal  either  absolutely  or  subject  to  qualifications. 

6,  Throughout  this  Code  every  definition  of  an 
_  ^   ^  .         offence,  every  penal  provision. 

Definitions  in  the  Code  to  j  -ii      x      j.«  i? 

be  understood  subject  to  ex-  and  overy  illustration  of  every 
oeptions.  such  definition  or  penal  pro- 

vision, shall  he  understood  subject  to  the  exceptions 
contained  in  the  Chapter  entitled  "  General  Excep- 
tions," though  those  exceptions  are  not  repeated  in 
such  definition,  penal  provision,  or  illustration. 

lllmtrations, 

(a)  The  Sections,  in  this  Code,  which  contain  definitions  of  of- 
fences, do  not  express  that  a  child  under  seven'  years  of  age  cannot 
commit  such  offences ;  hut  the  definitions  are  to  he  understood  suhject 
to  the  general  exception  which  provides  that  nothing  shall  he  an 
oflfence  which  is  done  hy  a  child  under  seven  years  of  age. 

ifi)  A,  a  Police  Officer,  without  warrant,  apprehends  Z,  who  has 
committed  murder.  Here  A  is  not  guilty  of  the  offence  of  wrong- 
ful confinement;  for  he  was  hound  by  law  to  apprehend  Z,  and 
therefore  the  case  falls  within  the  general  exception  which  provides 
that  **  nothing  is  an  offence  which  is  done  by  a  person  who  is 
bound  by  law  to  do  it." 

There  are  other  exceptions  in  the  chapter  referred  to  in  favour 
of  lunatics^  of  acts  done  in  the  exercise  of  the  right  of  self- 
defence^  of  acts  done  by  consent,  &c.  The  present  section 
obviates  the  necessity  of  repeating  these  exceptions  several 
times  in  each  page. 

7.  Every  expression  which  is  explained  in  any 

part  of  this  Code,  is  used  in 

i«^S^*i^^the^^2a3nS^^2SSe  everv  part  of  this  Code  in  con- 
throui^out  the  Code.  ^^^^^  ^.^j^  ^^^  explanation. 


•Man."  ,,  ~  «« 


16  CHAPTER  n. 

8.  The  pronoun  "  he"  and  its  derivatives  are  used 

of  any  person,  whether  male 

Gender.  x»         i 

or  female. 

9.  Unless  the  contrary  appears  from  the  context, 

words  importing  the  singular 
^*™  ^''  number    include    the    plural 

number,   and  words  importing  the  plural  number 
include  the  singular  number. 

10.  The  word  "  man"  denotes  a  male  human  be- 
ing   of   any  age:    the    word 

woman"    denotes    a  female 
human  being  of  any  age. 

11.  The  word  "person"  includes  any  Company 

or    Association,    or    body    of 
"Person,"  persous,  whether  incorporated 

or  not. 

That  IS  to  say,  besides  its  proper  meaning,  (a  single  person,) 
this  word  may  also  mean  many  persons  associated  together  in 
such  a  way  that  in  the  eye  of  the  law  they  become,  as  it  were, 
one  body.  If  they  are  thus  united  by  a  Legislative  Act  or  by 
a  Royal  Charter,  the  body  is  incorporated ;  if  the  union  is  by 
articles  of  partnership,  deed  of  association,  &c.,  the  company 
or  association  or  partnership,  although  not  incorporated,  has  a 
legal  existence.  In  either  case  the  united  body  may  be  under- 
stood to  be  included  by  the  word  "  person. '^ 

The  word  frequently  occurs  in  the  Code  in  a  sense  in  which 
it  is  clear  from  the  context  that  corporate  bodies,  &c.  are  not 
included. 

12.  The  word  "  public"  includes  any  class  of  the 
••pubuc."  public  or  any  community. 

13.  The  word  **  Queen"  denotes  the  Sovereign  for 

the  time  being  of  the  United 
•    "<i'^een."  Kingdom  of  Great  Britain  and 

Ireland. 

14.  The  words  "  servant  of  the  Queen"  denote  all 

officers  or  servants  continued, 
"  servant  of  the  Queen,"        appointed,  or  employed  in  In. 

dia  by  or  under  the  authority  of  the  said  Statute  21 


6ENEBAL  EXPLANATIONS.  17 

and  22  Vict.  c.  106,  entitled  "An  Act  for  the  better 
Government  of  India,"  or  by  or  under  the  authority 
of  the  Government  of  India  or  any  Government. 

15.  The  words  "British  India'*  denote  the  Ter- 

ritories which  are  or  may  be- 

"Britiah  India."  x   j    •       tt        hit   '     j. 

come  vested  m  Her  Majesty 
by  the  said  Statute  21  and  22  Vict.,  c.  106  entitled 
"  an  Act  for  the  better  Government  of  India,"  except 
the  Settlement  of  Prince  of  Wales'  Island,  Singapore 
and  Malacca. 

16.  The  words  "Government  of   India"   denote 

the  Governor  General  of  In- 

^Oovwiunent  of  India.**  .1^      •      n  -i  j       •        xl 

dia  in  Council;  or,  durmgthe 
absence  of  the  Governor  General  of  India  from  his 
Council,  the  President  in  Council,  or  the  Governor 
General  of  India  alone,  as  regards  the  powers  which 
may  be  lawfully  exercised  by  them  or  him  respectively. 

17.  The  word  "  Government"  denotes  the  person 
^  ^  or  persons  authorized  by  law 

oovernment."  ^^  administer  Executive  Go- 

vernment in  any  part  of  British  India. 

18.  The  word  "  Presidency"  denotes  the  Territo- 
'•ptmi        »  ^^^^  subject  to  the   Govern- 

^^''^^''  ment  of  a  Presidency. 

19.  The  word  "Judge"  denotes  not  only  every 

person  who  is  officially  desig- 
-  Judge.**  nated  as  a   Judge,  but  also 

evOTy  person  who  is  empowered  by  law  to  give,  in  any 
legal  proceeding,  civil  or  criminal,  a  definitive  judg- 
ment, or  a  judgment  which,  if  not  appealed  against, 
would  be  definitive,  or  a  judgment  which,  if  confirmed 
by  some  other  authority,  would  be  definitive,  or  who 
is  one  of  a  body  of  persons,  which  body  of  persons  is 
empowered  by  law  to  give  such  a  judgment. 

UlustratiofU, 

(a)  A  Golleotor  ezereising  jurisdiotion  in  a  suit  under  Act  X.  of 
1S59,  is  a  Judge. 

(b)  A  Magistrate  exercising  jurisdiction  in  respect  of  a  charge  on 
which  he  has  power  to  sentence  to  fine  or  imprisonment,  with  or 
without  appeal,  is  a  Judge. 

P 


18  CHAPTER  n. 

(c)  A  Member  of  a  Punchayet  which  has  power,  under  Regola* 
tion  YII.  1816  of  the  Madras  Code,  to  try  and  determine  suits,  is  a 
Judge. 

(d)  A  Magistrate  exercising  jurisdiction  in  respect  of  a  charge 
on  which  he  has  power  only  to  commit  for  trial  to  another  Court  is 
not  a  Judge, 

In  every  part  of  India  the  judicial  administration,  the  revenue 
administration,  and  the  police,  are  so  intermingled  with  each 
other,  that  it  is  not  easy  to  distinguish  between  them,  Manj 
proceedings  which  in  their  essential  character  are  judicial  are 
not  so  in  form.  If  the  proceeding  is  one  authorized  by  law, 
and  the  person  before  whom  it  is  taken  is  empowered  to  decide, 
as  stated  in  the  explanation,  he  is,  it  seems,  "  a  judge'^  within 
its  meaning,  whatever  may  be  his  official  designation. 

20,  The  words  **  Court  of  Justice- '  denote  a  Judge 

who  is  empowered  by  law  to 
-  court  of  Justice,"  ^^^  judicially  alone,  or  a  body 

of  Judges  which  is  empowered  by  law  to  act  judicially 
as  a  body,  when  such  Judge  or  body  of  Judges  is 
acting  judicially, 

Illustration. 
A  Punchayet  acting  under  Begulatiou  VII.  1816,  of  the  Madras 
Code,  having  power  to  try  and  determine  suits,  is  a  Court  of  Justice* 

21.  The  words  ^^  public  servant"  denote  a  person 
..«  w«  o       *..  falling  under  any  of  the  de-. 

scriptions  heremafter  follow* 
ing  namely  ;-^ 

jpirst.     Every  covenanted  servant  of  the  Queen ; 

Second.  Every  commissioned  officer  in  the  M  ilitary 
or  Naval  Forces  of  the  Queeu  while  serving  under  the 
Government  of  India  or  any  Government ; 

Third.    Eyery  Judge ; 

Fourth.  Every  Officer  of  a  Court  of  Justice  whose 
duty  it  is,  as  such  officer,  to  investigate  or  report  on 
any  matter  of  law  or  fact,  or  to  make,  authenticate, 
or  keep  any  document,  or  to  take  charge  or  dispose  of 
any  property,  or  to  execute  any  judicial  process,  or  to 
^^dmmister  any  oath,  or  to  interpret,  or  to  preserve 


GENERAX  EXMiANAf IONS  l9 

order  in  tKe  Court ;  and  every  person  specially  autho-* 
rized  by  a  Court  of  Justice  to  perform  any  of  such 
duties ; 

^fth.  Every  Juryman,  assessor,  or  member  of  a 
Punchayet  assisting  a  Court  of  Justice  or  public 
servant; 

Sia^th.  Every  Arbitrator  or  other  person  to  whom 
any  cause  or  matter  has  been  referred  for  decision  or 
report  by  any  Court  of  Justice,  or  by  any  other  com- 
petent public  authority ; 

Seventh,  ^yerj  person  who  holds  any  office  by 
virtue  of  which  he  is  empowered  to  place  or  keep  any 
person  in  confinement ; 

Mgkth.  Every  Officer  of  Government  whose  duty 
it  is,  as  audi  officer,  to  prevent  offences,  to  give  in- 
formation of  offences,  to  bring  offenders  to  justice,  or 
to  protect  the  public  health,  safety,  or  convenience ; 

Ninth.  Every  Officer  whose  duty  it  is,  as  such 
officer,  to  take,  receive,  keep,  or  expend  any  property 
on  behalf  of  Government,  or  to  make  any  survey, 
assessment,  or  contract  on  behalf  of  Government,  or 
to  execute  any  revenue  process,  or  to  investigate  or 
to  report  on  any  matter  affecting  the  pecuniary  inter- 
ests of  Government,  or  to  make,  authenticate,  or  keep 
any  document  relating  to  the  pecuniary  interests  of 
Government,  or  to  prevent  the  infraction  of  any  law  . 
for  the  protection  of  the  pecuniary  interests  of  Govern- 
ment; and  every  officer  in  the  service  or  pay  of 
Government  or  remunerated  by  fees  or  conmiission 
for  the  performance  of  any  public  duty  ; 

Tenth.  Every  officer  whose  duty  it  is,  as  such 
officer,  to  take,  receive,  keep,  or  expend  any  property, 
to  make  any  survey  or  assessment,  or  to  levy  any  rate 
or  tax  for  any  secular  common  purpose  of  any  village, 
town  or  district,  or  to  make,  authenticate,  or  keep  any 
document  for  the  ascertaining  of  the  rights  of  the 
people  of  any  village,  town,  or  district. 

Illwtration, 
A  Municipal  Commissioner  is  a  public  serrant. 
D  2 


20  CHAPTER  II. 

Explanation  1.  Persons  falling  under  any  of  the 
above  descriptions  are  public  servants,  whether  ap- 
pointed by  the  Government  or  not. 

JExpkmation  2.  Wherever  the  words  "  public  ser- 
vant'* occur,  they  shall  be  understood  for  every  person 
who  is  in  actual  possession  of  tlie  situation  of  a  pub- 
lic servant,  whatever  legal  defect  there  may  be  in  his 
right  to  hold  that  situation. 

A  line  is  drawn  between  the  great  mass  of  tbe  commnnity 
and  certain  classes  of  persons  in  the  service  and  pay  of  Go- 
vernment, or  exercising  various  public  functions,  who  are  here 
included  under  the  words  "  public  servants/^  Those  offences 
which  are  common  between  public  servants  and  other  members 
of  the  community  are  left  to  the  general  provisions  of  the  Code. 
But  there  are  several  offences  which  can  only  be  committed 
by  public  servants;  and  on  the  other  hand  public  servants 
in  the  discharge  of  their  duties  have  many  privileges  peculiar 
to  themselves.  This  explanation  is  therefore  important  with 
reference  to  numerous  provisions  of  the  Code. 

The  first  explanation  and  the  illustration  show  that  persons 
who  hold  offices  under  local  laws,  if  their  duties  fall  within 
any  of  the  descriptions  here  given,  are  public  servants. 

According  to  the  second  explanation  the  person  who  in  fact 
discharges  the  duties  of  the  office  which  bring  him  under  some 
one  of  the  descriptions  of  '^  public  servant,"  is  for  all  the 
purposes  of  the  Penal  Code  rightfully  a  public  servant,  what- 
ever legal  defect  there  may  be  in  his  right  to  hold  the  office. 
If  he,  being  to  all  appearance  a  public  servant,  accepts  a  bribe 
or  is  obstructed  in  the  execution  of  his  duty,  the  penal  provi- 
sions of  the  Code  are  applicable,  and  he  will  be  punished  in 
the  one  case  and  protected  in  the  other,  notwithstanding  that 
there  may  be  legal  defects  in  his  right  to  the  office.  Such 
defects  are  not  allowed  to  alter  the  character  of  an  offence 
committed  by  or  against  him  ;  however  much  they  may  affect 
the  validity  of  his  official  acts  in  other  respects. 

Where  the  offence  concerns  any  public  servant,  it  is  sufficient 


GENERAL  EXPLANATIONS.  21 

to  shew  ''  actual  possession  of  the  sitnation/'  and  this  is  suffi- 
ciently shewn  by  proof  that  the  duties  or  functions  are  actually 
discharged  by  the  person  alleged  to  be  sach  servant. 

22.  The  words  **  moveable  property*'  are  intended 
-M   aabia  «         *^  include  corporeal  property 

ov        property.  ^^  evcry    description,  except 

land  and  things  attached  to  the  earth  or  perma- 
nently  fastened  to  any  thing  which  is  attached  to  the 
earth. 

Under  the  head  of  immoveable  property  is  included  land  and 
things  attached  to  land^  that  is^  things  not  merely  resting  by 
their  own  weight  upon  the  earth,  or  temporarily  secured  to 
it,  but  let  into  or  otherwise  permanently  incorporated  with  it ; 
for  instance,  a  house  the  foundation  of  which  is  laid  in  the 
earth*  Things  permanently  fasted  to  any  thing  which  is  so 
attached  are  also  included,  as  the  doors,  sun-shades,  &c.,  of  a 
house. 

All  moveable  property  of  every  description  is  included  in  the 
words  here  explained,  provided  only  that  it  is  "  corporeal.'^ 
This  word  is  employed  to  exclude  such  property  as  has  no 
existence,  except  only  in  the  shape  of  a  claim,  or  contract,  or 
right  to  receive  money,  &c.  A  man's  household  furniture  is 
moveable  property  within  this  explanation,  but  when  he  has 
sold  it,  the  money  due  to  him  by  the  purchaser  is  not :  nor  will 
the  promissory  note  which  he  may  endorse  by  way  of  payment, 
be  so. 

Property  is  the  creation  of  the  civil  branch  of  the  law,  and 
although  this  explanation  tells  us  what  is  not  included  under 
the  words  "  moveable  property''  for  the  purpose  of  the  Penal 
Code,  we  must  seek  elsewhere  to  know  what  things  are  the 
subject  of  property. 

23.  "  Wrongful  gain"  is  gain  by  unlawful  means 

of  property  to  which  the  per- 
"  Wrongful  gain."  ^^^  gaining  it  is  not  legally 

entitled. 


22  CHAPTER  lU 

"  Wrongful  loss*'  is  the  loss  by  unlawful  means  of 

"wronirfbiioBB"  property  to  which  the  person 

losing  it  IS  legally  entitled. 

A  person  is  said  to  gain  wrongfully  when  such 

person  retains  wrongfully,  as 

^;Y5SS«Sie55}?n  '^f'^V^    well  as  when  such  person  ac 

**^'^ron«ftd  loss"  includes     quircs  wrougfully.     A  person 

thebeJjg^ngiUllykeptout      Jg     g^id     tO      lOSC     WrOUgfully 

when  such  person  is  wrong- 
fully  kept  out  of  any  property,  as  well  as  when  such 
person  is  wrongfully  deprived  of  property. 

24.  Whoever  does  any  thing  with  the  intention 

of  causing  wrongful  gain  to 

"Dishonestly."  ^  i?   i  i  x 

one  person  or  wrongful  loss  to 
another  person,  is  said  to  do  that  thing  "  dis- 
honestly/* 

The  words  explained  in  this  and  the  last  preceding  section  ge- 
nerally  occar  in  the  definitions  of  offences  against  property  and 
in  the  penal  provisions  connected  with  such  offences.  All  the 
violations  of  the  rights^  of  property  which  the  Code  makes 
pnnishable  resemble  each  other  in  this,  that  they  canse  or  have 
some  tendency  to  cause  some  person,  not  to  have  such  dominion 
over  property  as  he  is  entitled  by  law  to  have.  Some  of  these 
offences  do  not  merely  injure  or  disturb  the  enjoyment  of  pro- 
perty by  the  rightful  owner,  but  transfer  it  to  one  who  has  no 
right ;  causing  by  means  of  wrongful  loss  to  the  sufferer  wrong- 
ful gain  to  some  other  person.  Where  there  is  the  intention 
to  cause  either  the  wrongful  loss  of  property  to  the  owner,  or 
the  wrongful  gain  of  property  to  another  person,  the  word 
'*  dishonestly'*  is  used ;  but  not  where  the  intention  is 
merely  to  cause  damage  or  mischief. 

25.  A  person  is  said  to  do  a  thing  **  fraudulently,'* 

if  he  does  that  thing  with 

-PraudulenUy."  j^^^     ^^    dcfraud,    hut    not 

otherwise. 

The  word  is  used  to  denote  the  intention  to  deceive  or  cheat. 
It  does  not  necessarily  mean  that  the  thing  done  is  accom- 


GEKEBAL  EXPLANATIONS.  23 

pliflhed  by  the  Dse  of  deceit^  artifice^  frauds  &c.  This  word 
occars  in  Sections  of  the  Code  which  do  not  always  relate  to 
the  loss  or  gain  of  property. 

26.  A  person  is  said  to  have  "  reason  to  believe'* 

a  thing,  if  he  has   sufficient 

but  not  otherwise. 

27.  When  property  is  in  the  possession  of  a  per- 
PropertT  in  possoBsioii  of    sou's  wifc,  clerk,  or  servaut, 

wifo.oieri.or8epviiiit.  qj^  accouut  of  that  petsou,  it 

is  in  that  person's  possession  within  the  meaning  of 
this  Code. 

JSxplanation.  A  person  employed  temporarily  or 
on  a  particular  occasion  in  the  capacity  of  a  clerk  or 
servant,  is  a  clerk  or  servant  within  the  meaning  of 
this  Section. 

One  term  in  the  definition  of  theft  (see*  Chapter  XVII.)  is  an 
intention  to  take  moveable  property  out  of  the  possession  of  a 
person^  Here  and  in  other  parts  of  the  Penal  Code,  possession 
is  an  important  ingredient.  It  is  scarcely  possible  to  mark  with 
precision  by  any  words,  the  circumstances  which  constitute 
possession,  although  it  may  be  easy  to  put  cases  about  which 
no  doabt  whatever  exists*  The  object  of  the  framers  of  the 
Code  in  this  explanation  was  to  lay  down  a  few  rules,  in  accord* 
ance  with  the  general  sense  of  mankind,  for  the  purpose  of 
preventing  any  difference  of  opinion  from  arising  in  cases  like- 
ly to  occur  very  often.  The  possession  by  the  clerk  or  servant 
of  that  which  belongs  to  the  master,  or  of  that  which,  whether 
it  belongs  absolutely  to  his  master  or  to  another  person,  the 
clerk  or  servant  holds  for  his  master  and  on  his  account,  is  the 
master's  possession. 

28.  A  person  is  said  to  "  counterfeit,'*  who  causes 
M  o     *  -^^* .,  ^^^  thing  to  resemhle  another 

thing,  mtending  hy  means  of 
that  resemblance  to  practise  deception,  or  knowing  it 
to  be  likely  that  deception  will  thereby  be  practised. 
Explanation.    It  is  not  essential  to  counterfeiting 
that  tlie  imitation  should  be  exact. 


24  CHAPTER  II. 

29.  The  word  "  document"  denotes  any  matter  ex- 

pressed or  described  upon  any 

"Document."  substaucc  by  mcaus  of  letters, 

figures,  or  marks,  or  by  more  than  one  of  those  means, 

intended  to  be  used,  or  which  may  be  used,  as  evidence 

of  that  matter. 

jRxplanation  1.  It  is  immaterial  by  what  means  or 
upon  what  substance  the  letters,  figures,  or  marks  are 
formed,  or  whether  the  evidence  is  intended  for,  or 
may  be  used  in,  a  Court  of  Justice,  or  not. 

Illuetratiofu, 

A  writing  expressing  the  terras  of  a  contract,  which  may  he  used  as 
evidence  of  the  contract,  is  a  document. 

A  Cheque  upon  a  Banker  is  a  document. 

A  Power  of  Attorney  is  a  document. 

A  Map  or  Plan  which  is  intended  to  he  used  or  which  may  he  used 
as  evidence,  is  a  document. 

A  writing  containing -directions  or  instructions  is  a  document. 

Explanation  2.  Whatever  is  expressed  by  means 
of  letters,  figures,  or  marks  as  explained  by  m.ercan« 
tile  or  other  usage,  shall  be  deemed  to  be  expressed  by 
such  letters,  figures,  or  marks  within  the  meaning  of 
this  Section,  although  the  same  may  not  be  actually 
expressed. 

TiliMtration. 
A  writes  his  name  on  the  hack  of  a  Bill  of  Exchange  payahle  to  his 
order.  The  meaning  of  the  endorsement,  as  explained  hy  mercantile 
usage,  is  that  the  Bill  is  to  he  paid  to  the  holder.  The  endorsement 
is  a  document,  and  must  he  construed  in  the  same  manner  as  if  the 
words  ''pay  to  the  holder"  or  words  to  that  effect  had  heen  written 
over  the  signature. 

30.  The  words  **  valuable  security''  denote  a  docu* 
..„  ,     .        _    ..         ment  which  is,  or  purports  to 

"Valuable  leourity.''  ••  ,  x       t        y. 

be,  a  document  whereby  any 
legal  right  is  created,  extended,  transferred,  restricted, 
extinguished,  or  released,  or  whereby  any  person  ac- 
knowledges that  he  lies  under  legal  liability,  or  has 
not  a  certain  legal  right. 

Ultutration. 
A  writes  his  name  on  the  hack  of  a  Bill  of  Exchange.     As  the  effect 
of  this  endorsement  is  to  transfer  the  right  to  the  Bill  to  any  person 
who  may  hecome  the  lawful  holder  of  it;  the  endorsement  is  a  "  valu- 
able security." 


GENERAL  EXPLANATIONS.  25 

These  words  occhf  in  sections  relating  to  a  certain  class  of 
offences^  not  against  property  directly^  but  affecting  the  right  to 
property — (see  Chapter  XVIII.  of  offences  relating  to  docu- 
ments^ &o.).  The  words  denote  a  particular  class  of  documents^  ^ 
viz. :  such  documents  as  create  or  extinguish  legal  rights. 

31.  The  words  "  a  will'*  denote  any  testamentary 
••AWiu."  document. 

32.  In  eyery  part  of  this  Code,  except  where  a 
Word*  referring  to  aoto  in-    Contrary     intention     appears 

dude  iUesaiomiMions.  fy^^^  the  contcxt,  words  wMch 

refer  to  acts  done  extend  also  to  illegal  omissions. 

The  following  is  an  illustration  of  this  provision.  By  Section 
84,  nothing  is  an  offence  which  is  done  by  a  person  of  unsound 
mind.  A^  a  jailor^  goes  mad  and^  in  consequence  of  his  madness^ 
omits  to  snpply  his  prisoners  with  food.  The  words  of  the 
Secticm  "  thing  done  by  a  pwson*'  *PP^y  ^  A's  omission,  and 
he  has  committed  no  offence. 

The  Code  makes  punishable  omissions  which  have  caused, 
which  have  been  intended  to  cause,  or  which  have  been  known 
to  be  likely  to  cause  a  certain  evil  effect  in  the  same  manner 
as  it  punishes  acts ;  provided  that  such  omissions  were,  on  other 
grounds,  illegal.*  "  Illegal'*  is  a  word  explained  by  Section  48. 

33.  The  word  "  act"  denotes  as  well  a  series  of  acts 
oAot,**  as  a  single  act:  the  word 
-omiMtoiL-  "omission'*  denotes  as  well  a 

serirs  of  omissions  as  a  single  omission. 

34.  When  a  criminal  act  is  done  by  several  persons, 
of  eererei  pereons  u-    ®ach  of  such  pcrsons  in  liable 


i£?£S£k?iif  SS^^filiS    for  that  act  in  the  same  man 


ner  as  if  the  act  were  done  by 
him  alone. 

The  actual  doers,  who  are  the  persons  referred  to  here,  are 
to  be  distinguished  from  those  who  abet  the  doing  of  a  thing. 
The  law  concerning  principal  actors  is  contained  in  this  Section 

*  8oe  the  noto  to  Section  299,  post. 


26  CHAPTER  II.   . 

and  in  Sections  35  and  37  of  this  Chapter.     What  constitntes 
an  abetment  is  explained  in  the  Chapter  of  Abetment. 
See  the  notes  to  Sections  35  and  37. 

35.  Whenever  an  act,  which  is  criminal  only  by 

reason  of  its  being  done  with  a 
n;S^%"erSo^ii!fi5e\ig«e  Criminal  knowledge  or  inten- 
SSi^SST'*^  knowledge  or    tion,i8  donc  by  several  persons, 

each  of  such  persons,  who  joins 
in  the  act  with  such  knowledge  or  intention  is  liable 
for  the  act  in  the  same  manner  as  if  the  act  were  done 
by  him  alone  with  that  knowledge  or  intention. 

If  several  persons^  having  one  and  the  same  criminal  inten- 
tion or  knowledge^  jointly  commit  murder  or  an  assault^  each 
is  liable  for  the  offence  as  if  he  had  acted  alone :  bat  if  several 
persons  join  in  an  act^  each  having  a  different  intention  or 
knowledge  from  the  others,  each  is  liable  according  to  his  own 
criminal  intention  or  knowledge,  and  he  is  not  liable  further. 
As  if  A  and  B  unite  in  assaulting  and  resisting  C,  a  public 
servant,  in  the  execution  of  his  duty ;  A,  not  knowing  C's 
character,  may  be  guilty  only  of  an  assault :  but  B,  if  he  know- 
ingly resists  0,  may  commit  the  offence  of  obstructing  a  public 
servant  in  the  discharge  of  his  public  functions. 

If  on  act  which  is  an  offence  in  itself  and  without  reference 
to  any  criminal  knowledge  or  intention  on  the  part  of  the  doers 
is  done  by  several  persons,  as  if  several  commit  a  nuisance 
by  carrying  on  an  offensive  trade,  each  of  such  persons  is 
liable  for  the  offence. 

36.  Wherever  the  causing  of  a  certain  effect,  or  an 

Bflfeot  causedpartly  by  act      attempt  to  CaUSC  that  cffectby 
and  partly  by  oi^ission.  ^j^  ^^  qj.  ^y  ^j^  omission,  is  aH 

offence,  it  is  to  be  understood  that  the  causing  of  that 
effect  partly  by  an  act  and  partly  by  an  omission  is 
the  same  offence. 

Illustration, 
A  intentionally  causes  Z*s  death,  partly  by  illegally  omitting  to 
give  Z  food,  and  partly  by  beating  Z.     A  ha^  committed  murder. 


GENERAL  EXPLANATIONS.  27 

97 •    When  an  offence  is  committed  by  means  of 

several  acts,  whoever  inten- 
ofM^rma\ot?ooiuuteLt&gaa  tionally  co-opcratcs  in  the 
**"^^  commission  of  that  offence  by 

doing  any  one  of  those  acts,  either  singly,  or  joint- 
ly with  any  other  person,  commits  that  offence. 

IllustratioTis, 

(a)  A  and  B  agree  to  murder  Z  by  severally  and  at  different 
times  giving  bim  small  doses  of  poison.  A  and  B  administer  the 
poison  according  to  tbe  agreement  with  intent  to  murder  Z.  Z  dies 
from  tbe  effects  of  the  several  doses  of  poison  so  administered  to  him. 
Here  A  and  B  intentionally  co-operate  in  tbe  commission  of  murder, 
and  as  each  of  them  does  an  act  by  which  the  death  is  caused,  they 
are  both  guilty  of  the  offence,  though  their  acts  are  separate. 

(6)  A  and  B  are  joint  jailors,  and  as  such,  have  the  charge 
of  Z,  a  prisoner,  alternately  for  six  hours  at  a  time.  A  and  B,  in« 
tending  to  cause  Z's  death,  knowingly  co-operate  in  causing  that 
effect  by  illegally  omitting,  each  during  the  time  of  his  attendance, 
to  fiimish  Z  with  food  supplied  to  them  for  that  purpose.  Z  dies  of 
hunger.     Both  A  and  B  are  guilty  of  the  murder  of  Z. 

(c)  A,  a  jailor,  has  the  charge  of  Z,  a  prisoner.  A,  intending 
to  cause  Z's  death,  illegally  omits  to  supply  Z  with  food  ;  in  conse- 
quence of  which  Z  is  much  reduced  in  strength,  but  the  starvation 
is  not  sufficient  to  cause  his  death.  A  is  dismissed  from  his  office, 
and  B  succeeds  him.  B,  without  collusion  or  co-operation  with  A, 
illegally  omits  to  supply  Z  with  food,  knowing  that  he  is  likely 
thereby  to  cause  Z's  death.  Z  dies  of  hunger.  B  is  guilty  of 
murder ;  but  as  A  did  not  co-operate  with  B,  A  is  guilty  only  of  an 
attempt  to  commit  murder. 

We  have  seen  that  if  several  persons  combine^  both  in  intent 
and  act,  each  is  answerable  for  the  joint  criminal  act  just  as  if 
he  alone  had  done  it ;  and  so  it  is  if  each  person  has  his  several 
part  to  do,  the  whole  contributing  to  one  result.  It  is  imma- 
terial what  particular  share  is  allotted  to  each,  or  whether  the 
object  be  accomplished  jointly  by  all  present  at  the  same  time 
and  place,  or  each  performs  his  own  part  separately.  Where 
all  concur  in  effecting  the  criminal  result,  each  does  the  act 
so  far  as  his  own  part  extends,  and  as  to  the  residue,  may  be 
regarded  as  causing  it  to  be  done  by  means  of  a  guilty  agent. 
All  the  persons  concerned,  stand  in  the  mutual  relation  of 
principals  and  agents  to  each  other. 
B  2 


28  CHAPTER   II. 

38.  Where  several  persons  are  engaged  or  con- 
fleverai  persons  engaged  in    cemed  in  the  commission    of 

St  SkTbrg°im?Jy'Sff^?^  a  criminal  act,  they  may  be 
ent  oflfences.  guilty  of  diflferent  oflfences  by 

means  of  that  act. 

Illustration. 
A  attacks  Z  under  sach  circumstances  of  grave  provocation  that 
his  killing  of  Z  would  be  only  culpable  homicide  not  amounting  to 
murder.  B,  having  ill-will  towards  Z,  and  intending  to  kill  him, 
and  not  having  been  subject  to  the  provocation,  assists  A  in  killing  Z. 
Here,  though  A  and  B  are  both  engaged  in  causing  Z's  death,  B  is 
guilty  of  murder,  and  A  is  guilty  only  of  culpable  homicide. 

See  note  to  Section  35. 

39.  A  person  is  said  to  cause  an  effect  "  volun- 

tarily/' when  he  causes  it  by 
••Voluntarily."  means  whcrcby  he  intended  to 

cause  it,  or  by  means  which,  at  the  time  of  employ- 
ing those  means,  he  knew  or  had  reason  to  believe  to 
be  likely  to  cause  it. 

Illtistration, 

A  sets  fire,  b^  night,  to  an  inhabited  house  in  a  large  town,  for  the 
purpose  of  facilitating  a  robbery,  and  thus  causes  the  death  of  a 
person.  Here,  A  may  not  have  intended  to  cause  death,  and  may 
even  be  sorry  that  death  has  been  caused  by  his  act :  yet,  if  he  knew 
that  he  was  likely  to  cause  death,  he  has  caused  death  voluntarily. 

In  general  the  Code  makes  no  distinction  between  cases  in 
which  a  man  causes  an  effect  designedly,  and  cases  in  which 
he  causes  it  knowing  or  having  reason  to  believe  that  he  is 
likely  to  cause  it.  If  the  effect  is  a  probable  consequence  of 
the  means  used  by  him,  he  causes  it  "  voluntarily,''  whether  he 
really  meant  to  cause  it  or  not.  He  is  not  allowed  to  urge  that 
he  did  not  know  or  was  not  sure  that  the  consequence  would 
follow ;  but  he  must  answer  for  it  just  as  if  he  had  intended 
to  cause  it.*     The  English  law  by  means  of  an  artificial  pre- 

•  Upon  the  subject  of  "  Wilful  Injuries'*  the  English  Criminal  Law  Commia- 
sionera  say, "  We  have  included  withm  the  predicament  of  wilful  offenders  not  only 
Buoh  as  directly  intend  to  inilict  a  particular  injury,  but  also  all  such  aa  wilfully 
and  knowingly  incur  the  hazard  of  causing  it."  In  further  explanation  of  this  use 
of  the  term  wilfhl,  they  remark  (and  the  remark  is  equally  applicable  to  thr 
explanation  contained  in  the  above  section  of  the  Penal  Code)  thf^  "  the  propee 


6EKEBAL   EXPLANATIONS.  29 

ramption^  viz.^  that  a  man  is  presnmed  to  intend  the  natural 
or  probable  consequences  of  his  own  act,  gives  to  words 
which  denote  intention,  the  meaning  here  annexed  to  'Wolun- 
tarily." 

40.  The  word  "  offence''   denotes  a  thing  made 
"  offenoe.-  punishable  by  this  Code. 

"  Intending  to  facilitate  the  commission  of  cm  offence/'  &c., 
''knowing  that  an  offence  has  been  committed/'  &c.,  ''an  as- 
sembly of  five  persons  for  the  purpose  of  committing  an 
offence :''  In  construing  these  and  similar  expressions,  this 
explanation  must  be  borne  in  mind.  The  word  denotes  only 
those  acta  which  the  Code  punishes. 

41.  A  "  special  law*'  is  a  law  applicable  to  a  parti- 

<<  Special  law."  Cular  Subjoct. 

Act  Xni.  of  1854,  (for  the  management  of  the  Post  Office,) 
Act  XVIIL  of  1854,  (relating  to  railways  in  India,)  Act  XXXII. 

teet  of  goilt  in  mioh  oases  is  that  of  knowledge  and  oonscionsness  on  the  part 
of  the  malefactor  that  hnrt  or  damage  is  likely  to  result  or  will  probably  result^ 
team  what  he  does ;  his  criminality  consists  in  the  wilfully  incurring  the  risk 
of  causins  loss  or  suffering  to  others.     The  case  of  a  party  so  miscondncting 
himself,  and  so  regardless  of  the  interest  of  others,  seems  to  be  nndistingmshable 
in  point  of  legal  gnilt  and  penal  consequences  &om  that  of  a  criminal  who  acts 
with  the  most  direct  intention  to  execute  an  illegal  purpose,  and  it  seems  to  us 
that  he  may  properly  be  described  as  the  yoluntaiy  author  of  the  mischief  pro- 
duced.    The  principle  of  exemption  firom  criminal  responsibility  in  respect  of  a 
hurtful  consequence  is  that  of  bonft  fide  ignorance  of  the  connexion  existing 
between  the  mere  mechanical  act  and  its  consequence.    That  principle  ceases 
to  operate  where  the  connexion  is  known  to  be  either  certain  or  probable.    If 
the  doer  of  an  act  know  or  believe  that  a  noxious  consequence  will  result  from 
that  acty  he  is  just  as  culpable,  both  in  law  and  morals,  as  if  he  had  acted  with 
the  most  direct  intention  to  hurt.     Let  it,  however,  be  supposed  that  the  conse- 
nience  is  not  certain,  but  that  it  is  a  likely  or  probable  consequence,  and  that  the 
Gkelihood  or  probability  is  known  to  the  doer  of  the  act.     Here  again  it  is  clear 
that  the  principle  of  exemption  abovementioned  is  unavailable  to  exempt  the 
oiTender  from  liability  in  respect  of  the  consequence.     All  he  can  urge  is,  that 
he  was  not  sure  that  the  hurtful  consequence  would  follow ;  but  he  had  no 
ri|^  to  incur  the  risk  and  danger  of  producing  the  mis<ddef,  and  having  done 
so,  he  is  justly  responsible  for  it;  he  cannot  reasonably  complain  that  the  Law 
did  not  give  him  notice  of  the  penalty  annexed  to  the  offence,  or  that  he  did  not 
wilfhUy  offend,  for  the  Law  may  justly,  after  due  notification,  doom  -such  an 
offendOT  to  the  penalties  inflicted  on  those  who  accomplish  their  purposes  by 
more  certain  or  direct  means ;  the  safety  of  society  is  inconsistent  with  any 
distinction  in  this  respect,  ai»l  t^e  offender  in  truth  acted  wilfully,  in  wilfully 
incurring  the  risk  and  danger  of  causing  the  injurious  result."     7th  Beport  of 
the  Criminal  Law  Conmiissi<mer8. 


80  CHAPTER  II. 

of  1 854^  (relating  to  embankments^)  are  instances.  So  also^  it 
seems^  are  the  laws  relating  to  the  various  branches  of  the 
public  revenae^  as  Customs^  Opiam^  Stamps^  &c. 

42.  A  **  local  law'*  is  a  law  applicable  only  to 

a  particular  part  of  British 

Act  XIII.  of  1856,  (for  regulating  the  police  of  the  Towns  of 
Calcutta,  Madras,  &c.,)  Act  XX.  of  1 859,  (for  the  suppression 
of  outrages  in  Malabar)  are  instances.  The  laws  of  a  Presi- 
dency, or  of  a  Lieutenant  Governorship,  or  of  a  Province,  as  the 
laws  of  the  Presidency  of  Fort  St.  George,  of  the  Punjaub,  of 
Oude,  &C.J  are  not  local  laws. 

43.  The  word  **  illegal**  is    applicable  to  every 
"luegai"  thing  which    is    an  offence   or 

••i.egaUyboundtodo-  ^hich  is  prohibited  by  law,  or 
which  furnishes  ground  for  a  civil  action:  and  a 
person  is  said  to  be  "  legally  bound  to  do'*  whatever 
it  is  illegal  in  him  to  omit. 

44.  The  word  "injury**  denotes  any  harm  what- 

ever, illegally  caused  to  any 
"^'^••'  person,  uf  body,  mind,  reputi 

tion,  or  property. 

The  harm  must  be  "  illegally'^  caused.  It  often  happens 
that  the  lawful  exercise  of  a  right  causes  detriment  to  some 
person  ;  but  this  harm  is  not  "  injury.^'  An  act  which  is  by 
law  wrongful  as  regards  the  person  complaining,  that  is,  which 
aflTects  him  prejudicially  in  some  legal  right,  is  an  *' injury. 


.  jj 


45.  The  word  "  life'*  denotes  the  life  of  a  human 

being,   unless    the     contrary 
••Life.'*  appears  from  the  context. 

46.  The  word  "death**  denotes  the  death  of  a 

human  being,  unless  the  con- 
••  Death."  trary  appears  from  the  context. 


GENERilLL  EXPLANATIONS.  31 

47.     The    word    "animar*    denotes    any    living 

creature,  other  than  a  human 

4S.     The  word  "  vessel"  denotes  any  thing  made 

for  the  conveyance  by  water 
of  human  bemgs,  or  of  pro- 
perty. 
49.     Wherever  the  word   "year'*   or  the    word 

"month"  is  used,  it  is  to  be 
"Year."  Understood  that  the   year  or 

the  month  is  to  be  reckoned  according  to  the  British 
Calendar. 

60.     The  word  "  section"  denotes   one   of  those 

portions  of  a  Chapter  of  this 
••  flection."  ^^^^  which  are  distinguished 

by  prefixed  numeral  figures. 

51.  The  word  "  oath"  includes  a  solemn  aflirma- 

tion  substituted  by  law  for  an 
"Oath."  oath,  and  any  declaration  re- 

quired or  authorized  by  law  to  be  made  before  a 
public  servant  or  to  be  used  for  the  purpose  of  proof, 
whether  in  a  Court  of  Justice  or  not. 

52.  Nothing  is  said  to  be  done  or  believed  in  good 

faith,  which  is  done  or  believed 
"Goodfeith,"  without  due  care  and  atten- 

tion. 

What  is  done  by  a  person  who  in  good  faith  believes  himself 
to  be  bound  to  do  it,  or  what  is  done  in  good  faith  for  a  man's 
benefit,  thongh  in  fact  it  causes  harm  to  him,  is  not  an  ofifencd. 
Sections  76  and  88. 

This  explanation  of  good  faith  shews  in  what  sense  the  above 
and  other  similar  claases  are  to  be  understood.  Mere  good 
faith  in  the  sense  of  simple  belief,  actual  belief,  without  any 
grounds  for  believing,  is  not  sufficient :  the  belief  must  be  a 
reasonable  not  an  absurd  belief^  that  is,  there  must  be  some 
reasonable  ground  for  it.  Good  faith  in  act  or  belief  requires 
due  care  and  attention  to  the  matter  in  hand.  The  law  cannot 
mark,  except  in  this  vague  way,  the  amount  of  care  and  atten- 


32  CHAPTER   III. 

tion  requisite ;  but  if  a  man  takes  upon  himself  an  office  or 
duty  requiring  skill  or  care^  and  a  question  arises  whether  he 
has  acted  therein  in  good  faith^  he  must  shew  not  merely  a 
good  intention^  but  such  care  and  skill  as  the  duty  reasonably 
demands  for  its  due  discharge.  The  degree  of  care  requisite 
will  vary  with  the  degree  of  danger  which  may  result  from  the 
want  of  care.  Where  the  peril  is  the  greatest  the  greatest 
caution  is  necessary. 

Simple  belief  may  negative  malice  and  is  a  strong  argument 
against  any  criminal  intention^  but  where  the  question  is  whe- 
ther a  Magistrate  or  other  public  servant  is  justified  in  doing  a 
certain  things  his  justification  must  have  a  better  foundation  - 
than  his  mere  private  belief;  for  a  man  may  be  very  foolish 
in  believing  himself  justified^  and  the  law  could  not  adopt  so 
vague  and  unsafe  a  criterion. 


Chapter  III. 
OF  PUNISHMENTS. 


The  punishments  provided  for  oflTences  by  this  Code  ore  con- 
tained in  this  Chapter ;  but  the  mode  of  inflicting^  commuting^ 
and  remitting  punishments  belongs  to  the  law  of  procedure. 

The  power  to  grant  pardons  and  reprieves  and  remissions  of 
punishments  is  regulated  by  Act  XYIU.  of  1855. 

53.    The  punislimeiits  to  which  oflfenders  are  liable 

under  the  provisions  of  this 
Uode  are — 

First,— Death ; 

Secondly, — Transportation ; 

Thi/rdly, — Penal  servitude ; 

Fourthly, — Imprisonment,  vrhich  is  of  two  descrip- 
tions, namely : — 

(1.)     Rigorous,  that  is,  with  hard  labour ; 

(2.)     Simple; 


PUNISHMENTS.  33 

V 

Fifthly f — ^Forfeiture  of  property ; 

Sixthly, — Fine. 

There  are  several  sections  in  the  Code  in  which  offences  are 
referred  to  as  a  class  according  to  their  punishments^  e,  g. 
'^  abetting  the  commission  of  an  offence  punishable  with  trans« 
portation  for  life  /*  or  *'  with  imprisonment  which  may  extend 
to  ten  years/^  Ac.  It  may  be  useful  to  give  the  following 
classified  list  of  punishments  with  the  numbers  of  the  Sections 
containing  the  offences  to  which  such  punishments  are  an- 
nexed. 

Death  may  be  awarded  in  all  cases  of  murder — ^including  the 
abetment  of  suicide  of  a  child  under  eighteen  years  of  age^  of  a 
person  of  unsound  mind^  or  of  one  who  is  intoxicated^ — and  in- 
eluding  also  the  case  of  murder  in  dacoity  (which  makes  every 
member  of  the  gang  liable  to  the  punishment  of  murder^ 
although  the  actual  offence  was  committed  by  only  one  of  the 
party)  (Sections  302,  303,  305,  396).  And  it  is  the  only  punish- 
ment when  the  murder  is  committed  by  a  life-convict  (Section 
803).  Death  also  may  be  awarded  for  waging  war,  &c.  against 
the  Queen  (Section  121), — ^for  abetting  mutiny,  when  the 
mutiny  is  in  consequence  committed  (Section  182), — and  for 
giving  or  fabricating  false  evidence  by  means  of  which  an  inno- 
cent person  is  convicted  and  executed  (Section  194). 

TranspartaUon  for  life  may  be  substituted  for  death,  in  all 
the  capital  cases,  except  that  of  murder  by  a  life-convict.  And 
transportation  for  life,  or  imprisonment  for  ten  years,  may  be 
substituted  for  death  in  the  case  of  the  abetment  of  mutiny  (Sec- 
tion 132), — the  procuring  by  false  evidence  the  execution  of  an 
innocent  person  (Section  194), — ^the  abetment  of  the  suicide  of  a 
child,  or  of  an  insane  or  intoxicated  person  (Section  305), — and 
murder  committed  by  a  gang  of  dacoits  (Section  396) .  There  are 
only  two  offences  for  which  the  punishment  of  transportation  for 
life  mtkst  be  awarded :  the  unlawful  return  from  transportation 
(Section  226),  and  the  being  a  Thug  (Section  31t).  In  all  other 
cases, — all  cases  except  those  already  mentioned, — some  less 
f 


34  CHAPTBB  III* 

puDisbment  is  provided  by  the  Code^  which  may  be  awarded  at 
the  discretion  of  the  Court. 

The  following  are  the  sections  in  which  transportation  for  life 
occurs^  either  as  the  only  punishment^  or  as  one  of  the  ponish- 
ments  assigned:  Sections  75, 121,  122, 125,  128, 130,  131, 132, 
194,  222,  225,  226,  238,  255,  302, 304,  305,  307,  311,  313,  314, 
326,  329,  364,  371,  376,  377,  388,  889,  394, 395, 396, 400, 409, 
412,  413,  436,  438,  449,  459,  460,  467,  472,  474,  475,  477. 

The  Code,  in  no  instapce,  specifically  provides  transportation 
for  any  term  short  of  life,  as  a  punishment.  But  there  is  a 
general  provision  contained  in  Section  59  to  the  effect  that  when 
^  offender  is  punishable  with  imprisonment  for  seven  yeara 
or  more,  the  Court  may,  instead  of  awarding  Bentence  of  im- 
prisonment, sentence  the  offender  to  transportation  for  a  term, 
npt  less  than  seven  years,  and  not  exceeding  that  for  which 
the  offender  is,  under  the  Code,  liable  to  be  imprisoned.  There 
is  no  precise  rule  fi^dng  the  term  of  transportation  to  be  awarder 
ed  in  such  cases,  eiccept  that  it  can  never  be  less  than  seven 
years,  or  longer  than  the  term  for  which  the  offender  might  be 
imprisoned. 

Fourteen  years  is  the  longest  period  to  which  Imprisonment 
ever  extends.     In  two  instances  the  minimum  of  imprison'- 
ment  is  seven  years  (Sections  397,  398) ;  in  no  other  case  is  any 
minimum  fi:^ed.     The  following  statement  gives  the  Sections  in 
which  are  specified  the  various  offences  which  are  punishable 
with  imprisonment  for  terms  of  years,  or  shorter  periods, 
Jmpruonment  which  may  extend  to  fowrteen  years* 
Section  1 15  of  Chapter  V.     (Abetment.) 
Section  222  of  Chapter  XI.     (False  Evidence,  Ac,) 
Sections  392,  457  and  458  of  Chapter  XVU.     (Of. 
fences  against  Property.) 
Imprisonment  which  may  eictend  to  ten  years. 

Section  119  of  Chapter  V.  (Abetment.) 
Sections  122,  123  and  128  of  Chapter  VI.     (Offences 
against  the  State.) 


PUNISHMENTS*  36 

Sections   181   and  182  of  Chapter  VII.     (Oflfonces 

relating  to  the  Army  and  Navy.) 
Sections  194  and  225  of  Chapter  XI.     (False  Evi* 

dence  ftc.) 
Sections  282,  235,  238,  240,  251  and  255  of  Chapter 

XII.     (Offences  relating  to  coin  &c.) 
Sections  804—307,  813—816,  326—829,  831,  833, 

864,  866,  867,  871—873,  876  and  877  of  Chapter 

XVI.     (Offences  affecting  the  Human  Body.) 
Sections  382,  886,  888, 889,  892,  894—896, 899, 400, 

409, 412, 413, 486—489, 449,450, 454, 455, 459  and 

460  of  Chapter  XVII.  (Offences  against  Property.) 
Section  467  of  Chapter  XVIII.     (Offences  relating  to 

Docaments  kc.) 
Sections  498  and  496   of  Chapter  XX.     (Offences 

relating  to  Marriage.) 
Imprisonment  which  may  extend  to  ten  years  and  shall  not  be 
less  than  seven  years. 

Sections  397  and  398  of  Chapter  XVII.     (Offences 

against  Property.) 
Imprisonment  which  may  extend  to  seven  years. 

Sections  115  and  118  of  Chapter  V.  (Abetment.) 
Sections  124—127  of  Chapter  VI.     (Offences  against 

the  State.) 
Section  184  of  Chapter  VII.     (Offences  relating  to 

the  Army  and  Navy.) 
Sections  193,  195,  201,  211,  218,  214,  216,  219— 

222,  225  of  Chapter  XI.     (False  Evidence  Ac.) 
Sections  281,  234,  243—245,  247,  249,  256—260  of 

Chapter  XII.     (Offences  relating  to  Coin  &c.) 
Section  281  of  Chapter  XIV.     Offences  affecting  the 

Public  Health,  Safety  Ac.) 
Sections  808,  312,  317,  325,  330,  363,  365,  369,  370 

of  Chapter  XVI.     (Offences  affecting  the  Human 

Body.) 

F  2 


36  CHAPTER  ni. 

Sectionfl  380,  881,  387,  393,  401,  402,  404,  407,  408, 
420,  433,  435,  451,  452  of  Chapter  XVH.  (Of- 
fences against  Property.) 

Sections  466,  468,  472—477  of  Chapter  XVIII. 
(Offences  relating  to  Documents  &c.) 

Sections  494  and  496  of  Chapter  XX.  (Offences  re- 
lating to  Marriage.) 

Section  506  of  Chapter  XXII*     (Criminal  Intimida- 
tion, &c.) 
Imprisonm&iit  which  may  extend  to  Jive  years. 

Section  212  of  Chapter  XI.     (False  Evidence,  &c.) 

Sections  239,  250  and  253  of  Chapter  XII.  (Offences 
relating  to  Coin  &c» ) 

Sections  429—432,  440,  457  of  Chapter  VII.  (Of- 
fences  against  Property.) 

Section  497  of  Chapter  XX.     (Offences  relating  to 
Marriage. ) 
ImprisoTvment  which  may  extend  to  four  years. 

Section  335   of  Chapter  XVI.     (Offences  affecting 
the  Human  Body.) 
Imprisonment  which  may  extend  to  three  years. 

Sections  117  and  118  of  Chapter  V.     (Abetment.) 

Section  129  of  Chapter  VI.  (Offences  against  the 
State.) 

Section  133  of  Chapter  VII.  (Offences  relating  to 
the  Army  and  Navy.) 

Sections  148  and  152  of  Chapter  VIII.  (Offences 
against  the  Public  Tranquillity.) 

Sections  162,  164  and  167  of  Chapter  IX.  (Offences 
relating  to  Public  Servants.) 

Section  181  of  Chapter  X.  (Contempts  of  the  lawful 
authority  of  Public  Servants.) 

Sections  193,  201,  205,  212—214,  216,  218,  221, 
222,  and  225  of  Chapter  XI.  (False  Evidence  &c.) 


PUNISHMENTS.  37 

Sections  288,  235,  287,  242,  246,  248,  252,  261,  263 

of  Chapter  XII.     (Oflfences  relating  to  Coin  &c.) 
Sections  308,  312,  824,  332,  344,  347,  348  of  Chapter 

XVI.     (Oflfences  aflTecting  the  Human  Body.) 
Sections  879,  384,  404,  406,  411,  414,  418,  419,  454, 

456,   462   of  Chapter  XVII.      (Oflfences  against 

Property.) 
Sections  469,   484,  485,  487  of   Chapter  XVIII. 

(Oflfences  relating  to  Documents  &o.) 
Imprisonment  which  may  extend  to  two  years. 

Sections  135  and  136  of  Chapter  VII.     (Oflfences 

relating  to  the  Army  and  Navy.) 
Sections    144,    145,    147,    158    of  Chapter    VUI. 

(Oflfences  against  the  Public  Tranquillity.) 
Sections   165,   169,   170  of  Chapter  IX.     (Oflfences 

relating  to  Public  Servants.) 
Sections  177  and  189  of  Chapter  X.    (Contempts  of 

the  lawful  authority  of  Public  Servants.) 
Sections  203,  204,  206—211,  215,  217,  221,  223— 

225,  229  of  Chapter  XI.     (False  Evidence  &c.) 
Sections  241,  254,  262  of  Chapter  XII.     (Oflfences 

relating  to  Coin  &c.) 
Section  270  of  Chapter  XIV.     (Oflfences  aflfecting  the 

Public  Health,  Safety  &c.) 
Section  295  of  Chapter  XV.     (Oflfences  relating  to 

Religion.) 
Sections  318,  838,  343,  345,  346,  353—856  of  Chap- 

ter  XVI.     (Oflfences  aflfecting  the  Human  Body.) 
Sections  385,  403,  421—424,  427,  428,  451,  453, 

461  of  Chapter  XVII.    (Oflfences  against  Property.) 
Sections  465  and  483  of  Chapter  XVIIL     (Oflfences 

relating  to  Documents  &c.) 
Section  498  of  Chapter  XX»    (Oflfences  relating  to 

Marriage.) 
Sections  500—502  of  Chapter  XXI.     (Defamation.) 


38  CHAWER   III. 

Sections   504—507    of  Chapter    XXII.      (Criminal 

Intimidation  &c.) 
Imprisonment  which  may  extend  to  one  year. 

Section  153  of  Chapter  VIII,     (Offences  against  the 

Public  Tranquillity.) 
Sections  163,  166  and  168  of  Chapter  IX.     (Offences 

by  or  relating  to  Public  Servants.) 
Section  190  of  Chapter  X.     (Contempts  of  the  lawful 

authority  of  Public  Servants.) 
Sections  264—267  of  Chapter  XIII.     (Offences  re* 

lating  to  Weights  and  Measures.) 
Sections  296—298  of  Chapter  XV.     (Offences  re- 

lating  to  Religion.) 
Sections  309,  323,  342,  357  and  374  of  Chapter  XVI. 

(Offences  affecting  the  Human  Body.) 
Sections  417,  434  and  448  of  Chapter  XVII.     (Of- 

fences  against  Property.) 
Sections  482,  486  and  489  of  Chapter  XVIII.     (Of- 

fences  relating  to  Documents,  &c.) 
Sections  608  and  509  of  Chapter  XXII.     (Criminal 

Intimidation,  &c.) 
Imprisonmnent  which  may  extend  to  six  months. 

Section  138  of  Chapter  VII.     (Offences  relating  to 

the  Army  and  Navy.) 
Sections  143,  151,  153  and  158,  of  Chapter  VIII. 

(Offences  against  the  Public  Tranquillity.) 
Sections  172—179,  182,  183,  187  and  188  of  Chapter 

X.     (Contempts  of  the  lawful  authorily  of  Public 

Servants.) 
Sections  202  and  228  of  Chapter  XI.     (False  Evi. 

dence  &c.) 
Sections  269,   271—276,  279,   280,  282,  284—289 

and  291  of  Chapter  XIV.     (Oflfences  affecting  the 

Public  Health,  Safety  &c.) 
Section  337  of  Chapter  XVI.    (Oflfences  affecting  the 

Human  Body.) 


•  PUNISHMENTS.  89 

Imprisomnent  which  may  extend  to  three  months. 

Section  140  of  Chapter  VII.  (Ofifenoes  relating  to  the 

Army  and  Navy.) 
Section  171  of  Chapter  IX.     (Offences  by  or  relating 

to  Public  Servants.) 
Sections  180  and  186  of  Chapter  X.     (Contempts  of 

the  lawful  authority  of  Public  Servants.) 
Sections  277,  292—294  of  Chapter  XIV.     (Offences 

affecting  the  Public  Health,  Safety  &c.) 
Sections  336  and  352  of  Chapter  XVI.     (Offences 

affecting  the  Human  Body.) 
Sections  426  and  447  of  Chapter  XVU.     (Offence^ 

against  Property.) 
Section  491  of  Chapter  XIX.     (Criminal  Breach  of 
Contracts  of  Service.) 
JmprUanment  which  may  extend  to  one  Tnonth. 

Section  160  of  Chapter  VIII.     (Offences  against  the 

Public  Tranquillity.) 
Sections  172—176,  184,  I8&,  187,  188  of  Chapter  X. 
(Contempts  of   the    lawful    authority    of    Publio 
Servants.) 
Sections  834,  841,  358  of  Chapter  XVI.     (Offences 

affecting  the  Human  Body.) 
Sections  490  and  492  of  Chapter  XIX.     (Criminal 
Breech  of  Contracts  of  Service.) 
Imprisonment  which  m^y  extend  to  twenty-four  hours. 

Section  510  of  Chapter  XXII.  (Criminal  Intimida* 
tion,  &c.) 
Impriflonment  is  either  Rigorous  or  Simple.  It  is  rigorous 
in  the  case  of  the  offences  specified  in  Sections  194,  226,  364, 
382,  392-^96,  399—402,  412,  and  449.  It  is  simple  in  those 
referred  to  in  Sections  129,  163,  165,  166,  168,  169,  172—- 
180,  187,  228,  291,  309,  858,  500—502,  509,  510.  In  all  other 
instances  it  is  either  rigorous  or  simple,  or  partly  rigorous  and 
partly  simple  (Section  60),  at  the  discretion  of  the  Court.    And 


40  CHAPTER   III.  * 

whenever  the  Court  has  power  to  sentence  to  rigorous  impri- 
sonment^ it  may  order  that  the  offender  be  kept  in  solitary 
confinement  during  a  certain  portion  of  his  imprisonment  (Sec- 
tions 73,  74). 

The  Forfeiture  of  all  property  is  a  punishment  to  which  all 
offenders  are  liable  who  are  guilty  of  any  offence  punishable  with 
death  (Section  62),  or  who  are  guilty  of  waging,  or  preparing, 
or  attempting  to  wage,  or  abetting  the  waging  of,  war  against 
the  Queen  (Sections  121,  122).  In  the  former  instance  it  is  at 
the  discretion  of  the  Court  to  adjudge  or  not  that  the  ferfeitnre 
shall  take  place :  in  the  latter  (Sections  121,  122)  the  forfeiture 
of  all  property  is  an  essential  part  of  the  punishment,  and  the 
Court  has  no  discretion  in  the  matter. 

The  rents  and  profits  faccrumg  during  the  period  of  his  trans^ 
portaticn  or  vmprisonmentj  of  the  whole  estate  moveable  and 
immoveable  of  a  person  convicted  of  any  offence  for  which  he 
shall  be  transported,  or  sentenced  to  imprisonment,  for  seven 
years  or  upwards,  may  be  forfeited  to  Government  (Section  62). 
But  in  such  cases,  the  order  of  forfeiture  is  made  subject  to 
such  provision  for  the  family  and  dependents  of  the  offender,  as 
the  Oovemment  may  think  fit  to  allow. 

The  sections  relating  to  the  forfeiture  of  specific  property  are 
three  (Sections  126, 127, 169).  When  offenders  commit  or  pre- 
pare to  commit  depredation  on  the  territories  of  any  power  at 
peace  with  the  Queen,  forfeiture  of  any  property  used  or  intended 
to  be  used,  in  committing  such  depredation,  or  acquired  by  such 
depredation,  may  be  added  as  a  punishment  (Section  126).  So 
also  in  the  case  of  property  received  with  the  knowledge  that  it 
has  been  taken  in  waging  war,  or  committing  depredation,  on  a 
power  at  peace  with  the  Queen  (Section  127).  And  confiscation 
or  forfeiture  of  the  property  purchased  by  him,  is  part  of  the 
punishment  provided  for  a  public  officer  who  buys  property 
when  he  ought  not  to  do  so  (Section  169). 

In  almost  every  Penal  Section  throughout  the  Code,  Fine  is 
either  prescribed  positively  as  the  punishment,  or  is  authorised 


PUNISHMENTS.  41 

as  an  alternative  or  as  an  additional  punishment.    The  following 
table  shews  the  cases  in  which  fine  is  the  only  ponishment,  and 
what   is  the  limit  of  fine  in  sach  cases.     In  two  of  these 
instances  the  amount  of  fiue  is  unlimited. 
Pine,  when  it  is  the  only  punishment, — 

(a)  when  unlimited  in  amount,  Sections  155,  156. 
(6)  when  limited  to  1000  Rs.,  Section  154. 

(e)      500  Rs;,  Sections  187,  278. 

(i)      200  Rs.,  Sections  283,  290. 

In  about  140  cases  in  which  some  other  specified  punishment 
must  also  be  awarded  by  the  Court,  fine  may  be  infiicted  as  an 
additional  punishment :  in  all  these  cases  there  is  no  limit  to 
the  amount  of  the  fine,  which  is  left  to  the  discretion  of  the 
Court.  In  one  instance  (Section  254)  fine  is  prescribed  as  an 
alternative  punishment,  the  amount  being  proportioned  to  the 
value  of  the  subject  of  the  oflfence,  and  the  Court  having  power 
to  sentence  either  to  imprisonment  or  to  fine,  but  not  to  both» 
In  the  annexed  table  will  be  found  in  detail  the  cases  in  which 
fine  may  be  inflicted  as  an  additional  pumshm&nt  only  ;  and  also 
the  cases  in  which  it  may  be  inflicted  at  the  discretion  of  the 
Court  either  as  an  alternative  ^punishment,  or  as  an  addiUonal 
punishment, — ^that  is  to  say,  in  which  it  is  left  to  the  discretion 
of  the  Court  to  sentence  the  offender  either  only  to  some  punish- 
ment other  than  fine,  or  to  such  other  punishment  together  with 
fine,  or  to  fine  only.  In  some  of  the  cases  of  the  latter  class,  it 
will  be  observed  that  the  amount  of  the  fine  is  limited. 
Fine,  as  an  additional  punishment,  unlimited  in  amount : 

Sections  115, 1 18,  123, 124, 126—184,  181, 193,  194, 
201,  209,  211—214,  216,221,222,  225,226,231^ 
235,  237—240,  242—253,  255—259,  802,  304— 
307,  309,  311—314,  316,  325—831,  333,  344, 
347, 348, 363—367, 369—373, 376,  377,  380—382, 
386—389,  392—896,  399—402,  404,  407—409, 
412,  413,  420,435—440, 449-460,  466—469,  472 
—477,  484,  493—496. 
Q 


42  CHAPTER  in. 

Fine,   as  an   alternative  panishmeiit^    or    as  an  additional 
punishment : 

(a)  when  nnlimited  in  amount^ 
Sections  116,  117,  125,  135,  186,  138,  143—145,  147, 
148,  151—153,  157,  158,  162—170,  177,  189,  190, 
201—208,  210—220,  222—225,  229,  260—267,  269, 
270,  271,  281,  291—298,  304,  308,315,317,318, 
324,  332,  343,  353—356,  374,  379,  384,  385,  403, 
406,  411,414,  417—419,421—424,426—434,461, 
462,  465,  482,  483,  485—487,  489,  497,  498,  500— 
602,  504—506,  508,  509,  511. 
{b)    when  limited  to  2000  Bs.,  Section  386. 

(c)  when  limited  to  1000  Es.,  Sections  172—179,  182, 
188,  188,  228,  272—276,  279,  280,  282,  284—289, 
323,  338,  342,  357,  448. 

(d)  when  limited  to  500  Rs.,  Sections  140,  172—176, 
180,  184,  186,  187,  277,  334,  337,  341,  352,  447. 

{e)     when  limited  to  250  Bs.,  Section  336. 

(/)    when  limited  to  200  Rs.,  Sections  171, 185, 187, 188, 

358,  491. 
ig)    when  limited  to  100  Bs.,  Sections  160,  490. 
(h)    when  limited  to  10  Rs.,  Section  510. 
(t)     when  proportioned  to  the  value  of  the  subject  of  the 

ofienoe.  Sections  241,  492. 
54.    In  every  case  in  which  sentence  of  death  shall 

Oommutatton  of  sentence      ^^^^  ^^»  paSSCd,  the   Govem- 

of^^oxh.  m^j^t  Qf  India  or  the  Govern- 

ment of  the  place  within  which  the  offender  shall  have 
been  sentenced  may,  without  the  consent  of  the  of- 
fender, commute  the  punishment  for  any  other 
punishment  provided  by  this  Code. 

56.     In  every  case  in  which  sentence  of  transporta- 

Oommutation  of  sentence      ^^^^   ^^^   life    shall   haVC     bccn 

of  transportation  for  ufe.  passcd,  the  Govemmcnt  of 
India  or  the  Government  of  the  place  within  which 
the  offender  shall  have  been  sentenced  may,  without 


PUNISHMENTS,  43 

the  consent  of  the  offender,  commute  the  punishment 
for  imprisonment  of  either  description  for  a  term  not 
exceeding  fourteen  years. 

56.    Whenever  any  person  being  a  European  or 
^  American  is  convicted  of  an 

Bnropeaiu  and  Amerloans         /«  •  i,    i^i  j xi.* 

to  be  sentenoed  to  penal  serri-  OffenCC  punishablC  UUdcr  thlS 
tndain.teadoftrannK>rtation.      ^^^^  ^.^j^  transportation,  the 

Court  shall  sentence  the  oflfender  to  penal  servitude 
instead  of  transportation,  according  to  the  provisions 
of  Act  XXIV.  of  1855. 

67.     In  calculating  fractions  of  terms  of  punish- 
Fractions  of  tenns  of  pu-    mcut,  transportation  for  life 
■^^■^*"*^*'  shall*  be  reckoned  as  equiva- 

lent to  transportation  for  twenty  years. 

58.  In  every  case  in  which  a  sentence  of  transpor- 

tation  is  passed,  the  offender, 
tnskB^nMonhowu>h^dJ&    uutil  hc  is  transported,  shall 

ner  as  if  sentenced  to  rigorous  imprisonment,  and 
shall  be  held  to  have  been  undergoing  his  sentence  of 
transportation  during  the  term  of  his  imprisonment. 

According  to  the  Code  of  Criminal  Procedure,*  the  Court  will 
not  in  the  sentence  specify  the  place  of  transportation.  The 
Supreme  Government  appoints  a  place  or  places  of  transporta- 
tion within  the  British  Territories ;  and  the  local  Governments 
give  orders  for  the  removal  of  persons  sentenced  to  transporta- 
tion to  the  places  so  appointed. 

59.  In  every  case  in  which  an  offender  is  punish- 

able with  imprisonment  for  a 

In  what  oases  transporta-       ,  ^  ^ 

tion  mar  be  awarded  instead  tcrm  01  SCVCU  yCarS  Or  Up- 
ofimprfsonment.  ^^^^^^    .^    ^j^^jj    ^^    Competent 

to  the  Court  which  sentences  such  offender,  instead 
of  awarding  sentence  of  imprisonment,  to  sentence  the 
offender  to  transportation  for  a  term  not  less  than 
seven  years,  and  not  exceeding  the  term  for  which 
by  this  Code  such  offender  is  liable  to  imprisonment. 

•  Act  No.  XXV.  of  1861.     See  Sections  50,  61. 

g2 


44  CHAPTER  IIIw 

60.  In  every  case  in  which  an  oflfender  is  punish-* 

able  with  imprisonment  which 

Sentence  may  be  (in  certain  i         /»    ^A         -i  *    j.*  *x 

oases)  of  imprisonment,  whol-  maV  DO  01  either  CleSCnptlOn,  it 
lyorpartlyrigorousorsimple.      ^^^     ^^     competent     tO     thc 

Court  which  sentences  such  offender  to  direct  in  the 
sentence  that  such  imprisonment  shall  be  wholly 
rigorous,  or  that  such  imprisonment  shall  be  wholly 
simple,  or  that  any  part  of  such  imprisonment  shall 
be  rigorous  and  the  rest  simple. 

61.  In  every  case  in  which  a  person  is  convicted 

Senteaoe  of  torefitiaB  of      ot   an    offeUCC   for  wMch  he  is 

^J^^y-  liable  to  forfeiture  of  aU  his 

property,  the  offender  shall  be  incapable  of  acquiring 
any  property  except  for  the  benefit  of  Government 
until  he  shall  have  undergone  the  punishment  award- 
ed,  or  the  punishment  to  which  it  shall  have  been 
commuted,  or  until  he  shall  have  been  pardoned* 

IUustr<dion. 

A,  being  convicted  of  waging  war  against  the  Government  of 
India,  is  liable  to  forfeiture  of  all  his  property,  After  the  sentence, 
and  whilst  the  same  is  in  force,  A's  father  dies,  leaving  an  estate 
which,  but  for  the  forfeiture,  would  become  the  property  of  A.  The 
estate  becomes  the  property  of  Government, 

The  convict  continues  capable  of  acqairing  property,  but  he 
holds  it,  when  acquired,  for  the  benefit  of  Government  only. 
Having  undergone  his  sentence  or  received  a  remission  of  it, 
the  capacity  to  acquire  and  hold  property  for  his  own  benefit  re- 
turns to  him.  But  whether  he  has  received  a  pardon  or  worked 
out  his  sentence,  he  never  can  have  any  right  to  the  property 
which  under  this  Section  is  taken  from  him,  but  only  to  subse- 
quently acquired  property, 

62.  Whenever  any  person  is  convicted  of  an  offence 

Forfeiture  of  property  in    punishablc  with     death,   the 

rbr5^t?f  SfKan^i^^  Court  may  adjudge  that  all 
tion,orimprieoimient,  j^jg  property,  movcablc    and 

immoveable,  shall  be  forfeited  to  Government ;  and 
whenever  any  person  shall  be  convicted  of  any  offence 
for  which  he  shall  be  transported  or  sentenced  to  im- 


PUNISHMENTS,  45 

prisonment  for  a  term  of  seven  years  or  upwards,  the 
Court  may  adjudge  that  the  rents  and  profits  of  all 
his  moveable  and  immoveable  estate  during  the 
period  of  his  transportation  or  imprisonment,  shall 
be  forfeited  to  Government,  subject  to  such  provision 
for  his  family  and  dependents  as  the  Government 
may  tliink  fit  to  allow  during  such  period. 

In  certain  specified  instances  (Sections  121,  122,)  the  forfei- 
ture of  the  ofiender^s  property  necesscvrily  follows  the  conviction. 
Bat  forfeitare  under  this  Section  rests  with  the  Court  and  must 
be  adjudged  as  part  of  the  sentence. 

The  eight  following  Sections  relate  to  punishment  by  fine* 
The  framers  of  the  Code,  in  a  note  to  this  Chapter,  observe 
that, 

'rPine  is  one  of  the  most  common  punishments  in  every  part  of 
the  world,  and  it  is  a  punishment,  the  advantages  of  which  are  so 
great  and  obvious,  that  we  propose  to  authorise  the  Courts  to 
inflict  it  in  every  case,  except  where  forfeiture  of  all  property 
is  necessarily  part  of  the  punishment.  Yet  the  punishment  of 
fine  is  open  to  some  objections.  Death,  imprisonment,  trans- 
portation, banishment,  solitude,  compelled  labour,  are  not, 
indeed,  equally  disagreeable  to  all  men.  But  they  are  so  dis- 
agreeable to  all  men  that  the  legislature,  in  assigning  those 
punishments  to  offences,  may  safely  neglect  the  differences 
produced  by  temper  and  situation.  With  fine  the  case  is  dif- 
ferent. In  imposing  a  fine,  it  is  always  necessary  to  have  as 
much  regard  to  the  pecuniary  circumstances  of  the  offender, 
as  to  the  character  and  magnitude  of  the  offence.  The  mulct 
which  is  ruinous  to  a  labourer  is  easily  borne  by  a  tradesman, 
and  is  absolutely  unfelt  by  a  rich  Zemindar. 

''  It  is  impossible  to  fix  any  limit' to  the  amount  of  a  fine  which 
will  not  either  be  so  high  as  to  be  ruinous  to  the  poor,  or  so 
low  as  to  be  no  object  of  terror  to  the  rich.  There  are  many 
millions  in  India  who  would  be  utterly  unable  to  pay  a  fine  of 


46  CHAPTER   III, 

fifty  rupees ;  there  are  hundreds  of  thousands  from  whom  such 
a  fine  might  be  levied^  but  whom  it  would  reduce  to  extreme 
distress;  there  are  thousands  to  whom  it  would  give  very 
little  uneasiness ;  there  are  hundreds  to  whom  it  would  be  a 
matter  of  perfect  indifference,  and  who  would  not  cross  a  room 
to  avoid  it.  The  number  of  the  poor  in  every  country  exceeds 
in  a  very  great  ratio  the  number  of  the  rich.  The  num- 
ber of  poor  criminals  exceeds  the  number  of  rich  criminals 
in  a  still  greater  ratio.  And  to  the  poor  criminal  it  is  a  mat- 
ter of  absolute  indifference  whether  the  fine  to  which 
he  is  liable  be  limited  or  not,  unless  it  be  so  limited  as  to  render 
it  quite  inefficient  as  a  mode  of  punishing  the  rich.  To  a  man 
who  has  no  capital,  who  has  laid  by  nothing,  whose  monthly 
wages  are  just  sufficient  to  provide  himself  and  his  family  with 
their  monthly  rice,  it  matters  not  whether  the  fine  for  assault  be 
left  to  be  settled  by  the  discretion  of  the  Courts,  or  whether  a 
hundred  rupees  be  fixed  as  the  maximum.  There  are  no  degrees 
in  impossibility.  He  is  no  more  able  to  pay  a  hundred  rupees 
than  to  pay  a  lac.  A  just  and  wise  judge,  even  if  entrusted 
with  a  boundless  discretion,  will  not,  under  ordinary  circum- 
stances, sentence  such  an  offender  to  a  fine  of  a  hundred  rupees. 
And  the  limit  of  a  hundred  rupees  would  leave  it  quite  in  the 
power  of  an  unjust  or  inconsiderate  judge  to  inflict  on  such 
an  offender  all  the  evil  which  can  be  inflicted  on  him  by  means 
of  fine.'' 

63.    Where  no  sum  is  expressed  to  which  a  fine 
t  of  fin  '^^y  extend,   the  amount  of 

^^^  ^     *'  fine  to  which  the  offender  is 

liable  is  unlimited,  but  shall  not  be  excessive. 

The  difficulty  of  framing  any  general  rule  for  the  limiting  of 
fine  has  always  been  felt.  The  rule  here  laid  down,  that 
excessive  fines  shall  not  be  imposed,  follows  the  words  of  the 
Bill  of  Rights  (1  Will,  and  Mary.  St.  2  G.  2.)  In  cases 
which  are  not  very  heinous,  the  amount  of  fine  which  the  Courts 


PUNISHMENTS.  47 

may  impose  is^  as  has  been  shewn  above^  limited  by  the  Code  ; 
bat  in  serioas  cases  the  amount  is  left  to  their  discretion, 

64.     In  every  case  in  which  an  offender  is  sentenc- 

Sentenoe  of  imprisonment      ^d  tO    a   fine,  it    shall   bc    COm- 
indefiiiiU  of  payment  of  fine.      petent      to     the     CoUrt     wMch 

sentences  such  offender  to  direct  by  the  sentence  that 
in  default  of  payment  of  the  fine,  the  offender  shall 
suffer  imprisonment  for  a  certain  term,  which  impri- 
sonment  shall  be  in  excess  of  any  other  imprisonment 
to  which  he  may  have  been  sentenced  or  to  which  he 
may  be  liable  under  a  commutation  of  a  sentence. 

This  and  the  following  Sections  provide  for  the  course  to  be 
adopted  in  default  of  payment  of  fine.  An  offender  who  has 
been  sentenced  to  fine  must  be  considered  as  a  debtor^  and 
as  a  debtor  not  entitled  to  any  peculiar  lenity.  If  a  tem- 
porary imprisonment  for  debt  ought  not  to  canoel  the  claim  of 
the  private  creditor,  neither  ought  a  temporary  imprisonment 
in  de&nlt  of  payment  of  a  fine  to  cancel  the  claims  of  public 
justice.  To  sentence  an  offender  to  fine,  and  to  a  certain  fixed 
tetm  of  imprisonment  in  default, of  payment,  and  then  to  leave 
it  to  himself  to  determine  whether  he  will  part  with  his  money 
or  lie  in  jail,  appears  very  objectionable.  If  offenders  are 
allowed  to  choose  between  imprisonment  and  fine,  fine  will 
lose  almost  its  whole  efficacy,  and  will  never  be  inflicted  on 
those  who  dread  it  most.  To  prevent  this  result  the  Code  makes 
the  following  provision : — At  the  time  of  imposing  a  fine,  the 
Court  may  fix  a  certain  term  if  imprisonment  which  the  offend- 
er shall  undergo  in  default  of  payment :  but  the  Court  may 
further  at  any  time,  either  before  or  after  he  has  undergone  this 
additional  imprisonment,  levy  the  fine  from  the  property  of  the 
offender.  (Section  70.)  In  fixing  the  term  of  imprisonment  to 
be  undergone  in  default  of  paying  a  fine,  the  Court  must  in  no 
oase  exceed  a  certain  maximum,  which  will  vary  according  to  the 
nature  of  the  offence.  If  the  offence  be  one  which  is  punishable 
with  imprisonment  as  well  as  fine,  the  term  of  imprisonment  in 


48  CHAPTER  III. 

default  of  payment  will  not  exceed  one-fourth  of  the  longest 
term  of  imprisonment  fixed  by  the  Code  for  the  offence.  If  the 
offence  be  one  which^  by  the  Code^  is  punishable  only  with  fine^ 
the  term  of  imprisonment  for  default  of  payment  will  be  accord- 
ing to  the  scale  given  in  Section  67. 

66.     The  term  for  which  the  Court  directs  the  of- 
fender to  be    imprisoned    in 

Iiimit  of  term  of  imprUon-  j   />      li.     i»                      x       />         ^ 

ment  for  default  in  payment  CleiaUit  Ol    paymCDt    01    a    line, 

of  fine,  when  the  offence  is  in         i.                j              /»        j.i_       * 

punishable    with    imprison-  Shall  not  CXCeed  One-fOUrth    Of 

ment  as  weU  as  fine.  j.v         j.                  i»      •           •                   j. 

the  term  of  imprisonment 
which  is  the  maximum  fixed  for  the  oflfence,  if  the 
offence  be  punishable  with  imprisonment  as  well  as 
fine. 

66.  The  imprisonment  which  the  Court  imposes 
Description  of  imprison-    ^  default  of  payment    of  a 

ment  for  such  defouit.  fi^e  may  hc  of  any  description 

to  which  the  offender  might  have  been  sentenced  for 
the  offence. 

67.  If  the  offence  be  punishable  with  fine  only. 

Term  of  imprisonment  for      the  term  for   wMch  the    Court 

SiSS'ti^o^^iSS^is  puiSSg:  directs  the  offender  to  be  im. 
able  with  fine  only.  prxsoncd,  iu  default  of  payment 

of  fine,  shall  not  exceed  the  following  scale,  that  is 
to  say ;  for  any  term  not  exceeding  two  months  when 
the  amount  of  the  fine  shall  not  exceed  fifty  Bupees, 
and  for  any  term  not  exceeding  four  months  when  the 
amount  shall  not  exceed  one  hundred  Rupees,  and  for 
any  term  not  exceeding  six  months  in  any  other  case. 

68.  The  imprisonment  which  is  imposed  in  default 
su<^  imprisonment  to  tor-    of  payment  of  a  fine    shall 

minate  upon  payment  of  the       t       ^  •       .         t  it     i     n 

fine.  terminate  whenever  that  fine 

is  either  paid  or  levied  by  process  of  law. 

This  imprisonment  is  not  to  be  taken  in  fall  satisfaction 
of  the  fine.  The  offender  is  not  permitted  to  choose  whether 
he  will  suffer  in  his  pefson  or  in  his  property.  His  person 
will  indeed  cease  to  be  answerable  when  he  has  undergone  the 
imprisonment  awarded  to  him :   but  his  property  will  for  a 


PUNISHMEKTS.  49 

time  continne  liable.  At  any  time  dariag  six  years  the 
fine  may  be  levied  on  his  effects. 

The  process  of  law  for  the  levy  of  fines,  and  the  power  to 
award  pecuniary  compensation  to  persons  injured  by  offences, 
are  not  provided  by  this  Code.  The  provisions  on  these  subjects 
contained  in  the  new  law  of  criminal  procedure  should  be 
consulted.     (See  Act  XXV.  of  1861,  Sections  44  and  61.) 

69.  If,  before  the  expiration  of  the  term  of  impri-i 

sonment  fixed  in  default  of 

Termiiiation  of  suoh  impii-  j.  i.  j.'  j* 

sonment  upon  payment  of  payment,  SUCH  a  prOportlOU  01 
proportloniiparto/fine  ^^j^^  ^^  ^^  p^.^  ^^  j^^^^  ^j^^^ 

the  term  of  imprisonment  suflfered  in  default  of  pay- 
ment is  not  less  than  proportional  to  the  part  of  the 
^e  still  unpaid,  the  imprisonment  shall  terminate. 

Illustration* 

A  is  sentenced  to  a  fine  of  one  hundred  Eupees,  and  to  four  months 
imprisonment  in  default  of  payment.  Here,  if  seventy-five  Rupees 
of  the  fine  be  paid  or  levied  before  the  expiration  of  one  month  of 
the  imprisonment,  A  will  be  discharged  as  soon  as  the  first  month 
has  expired.  If  seventy-five  Ilupees  be  paid  or  levied  at  the  time 
of  the  expiration  of  the  first  month,  or  at  any  later  time  while  A 
continues  m  imprisonment,  A  will  be  immediately  discharged.  If  fifty 
Bupees  of  the  fine  be  paid  or  levied  before  the  expiration  of  twQ 
months  of  the  imprisonment,  A  will  be  discharged  as  soon  as  the 
two  months  are  completed.  If  fifby  Bupees  be  paid  or  levied  at  the 
time  of  expiration  of  those  two  months,  or  at  any  later  time  while  A 
continues  in  imprisonment,  A  wiU  be  immediately  discharged. 

70.  The  fine,  or  any  part  thereof  which  remains 

unpaid,  may  be  levied  at  any 

Fine  may  be  levied  within      i*  *  .,1  •  •^    •     _  .ti         .,•' 

9ix  years  or  at  any  time  da-    time  Within  SIX  years  alter  the 

rin^thatermof imprisonment.      ^^^^^^^  ^^  ^^^  Sentence,  and  if, 

under  the  sentence,  the  oflfender  be  liable  to  impri- 
sonment for  a  longer  period  than  six  years,  then  at 

any  time  previous  to  the  ex- 

Death  of  offender  not  to  dia-         f      x*  i?  ±r^    i.  •    ji  ■■ 

charge  bl8  property  firom  lia-      plratlOU    Of  that    pcriOd  ;    and 

^^^^'  the  death  of  the  offender  does 

not  discharge  from  the  liability  any  property  which 
would,  after  his  death,  be  legally  liable  for  his 
debts. 


60  CHAPTER  ni. 

71.  Where  anything  which  is  an  offence  is  made 

up  of  parts,  any  of  which  parts 

Iiimit  of  punishment  of  of-       ••ii/»  i»  xi.        /«»j 

fence  which  ia  3ad9  u^  of    IS  itseli  an  offencey  the  offender 

BovevBl  offenoeu.  ^j^^jj  ^^^  ^^  punished  with  the 

punishment  of  more  than  one  of  such  his  offences, 
unless  it  be  so  expressly  provided. 

lUiisfraiion, 

(a)  A  gives  Z  fifty  strokes  with  a  stick.  Here  A  may  have  oom< 
mitted  the  offence  of  voluntarily  causing  hurt  to  Z  hy  the  whole 
beating,  and  also  by  each  of  the  blows  which  make  up  the  whole 
beating.  If  A  were  liable  to  punishment  for  eveiy  blow,  he  might  be 
imprisoned  for  fifby  years,  one  for  each  blow.  But  he  is  liable  only 
to  one  punishment  for  the  wrhole  beatings 

(5)  Sut  if,  while  A  is  beating  Z,  Y  interferes,  and  A  intentionally 
strikes  Y,  here,  as  the  blow  given  to  Y  is  no  part  of  the  act  whereby 
A  voluntarily  causes  hurt  to  Z,  A  is  liable  to  one  punishment  for  vo- 
luntarily causing  hurt  to  Z,  and  to  another  for  the  blow  given  to  Y. 

72.  In  all  cases  in  which  judgment  is  given  that 

tSmishmont   of    a    person      ^  pcrSOU  is  gmlty  of  OUC  of  SC- 

SfSil^hSftSontS?IS5S  veral  offences  specified  in  the 
mat  it  is  douttta  Of  whicn.  judgment,  but  that  it  is  doubt, 
ful  of  which  of  these  offences  he  is  guilty,  the  offen- 
der shall  be  punished  for  the  offence  for  which  the 
lowest  punishment  is  provided,  if  the  same  punish<< 
ment  is  not  provided  for  all. 

This  provision  is  intended  to  prevent  an  offender  whose 
gnilt  is  fully  established  from  elnding  punishment  on  the 
gronnd  that  the  evidence  does  not  enable  the  tribunals  to 
pronounce  vrith  certainty  under  what  penal  provision  his  case 
&lls.  The  details  of  the  law  on  this  subjeot  are  contained 
in  the  Code  of  Criminal  Procedure,'^  but  the  provision  which 
directs  the  punishment  in  such  cases,  belongs  to  the  Penal  Code. 

Whether  the  doubt  is  merely  between  an  aggravated  and 
mitigated  form  of  the  same  offence,  or  between  two  offences, 
neither  of  which  is  a  mitigated  form  of  the  other,  the  offender 
must  be  punished  for  the  offence  to  which  the  lowest  punish- 
ment  is  annexed*  If  the  same  punishment  is  provided  for  each 
of  the  offences,  the  offender  is  of  course  liable  to  that  punishment; 

•  See  Sections  242  and  382  of  Act  XXV.  of  1861. 


PtJNISHMEKTS.  51 

As>  for  example^  if  it  is  certain  that  either  A  or  6  murdered  Z, 
and  that  whichever  was  the  murderer^  was  aided  by  ihe  other 
in  the  commission  of  the  murder^ — bnt  which  committed  the 
mnrder^  and  which  aided  the  commission^  it  is  impossible  to 
ascertain, — the  pnnishment  of  both  these  offences  is  the  same> 
and  therefore  both  A  and  B  are  liable  to  that  pnnishment. 

It  is  chiefly  in  cases  where  property  has  been  frandnlently 
appropriated  that  the  necessity  for  this  Section  will  be  felt. 
This  provision  will  obviate  all  the  inconveniences  which  might 
arise  from  donbts  as  to  the  exact  limits  which  separate  tiiefb 
from  misappropriation  and  from  breach  of  trnst.  If  a  case 
which  is  plainly  theft  comes  before  the  judges,  the  offender 
will  be  punished  as  a  thief.  If  a  case  which  is  plainly  breach 
of  knst  comes  before  them,  the  offender  will  be  punished  as 
guilty  of  breach  of  trust.  If  they  have  to  try  a  case  which  lies 
on  the  frontier, — one  of  those  thefts  which  are  hardly  distin- 
guishable from  breaches  of  trusty  or  one  of  those  breaches  of 
trust  which  are  hardly  distinguishable  from  theft^ — they  will  not 
trouble  themselves  with  subtle  distinctions,  but  leaving  it 
imdetermined  by  which  name  the  offence  should  be  called,  will 
proceed  to  determine  what  is  of  infinitely  greater  importance, 
namely  what  shall  be  the  punishment. 

This  mode  of  procedure  or  punishment  should  only  be 
resorted  to  in  cases  in  which  it  is  impossible  to  ascertain  the 
specific  offence  committed  by  a  person  who  clearly  has  parti- 
cipated in  or  is  guilty  of  some  offence.  The  main  facts  which 
constitute  the  body  of  such  offence  are  proved,  and  the  doubt 
relates  to  some  incidental  point  which  is  of  a  quality  important 
only  as  determining  whether  the  offence  falls  technically  under 
one  designation  or  another.  Without  determining  this  pointy 
the  Court  convicts  the  offender  in  the  alternative,  and  sentences 
him  to  a  pnnishment  equally  warrantable  whether  the  offence 
were  (ex.  gr.)  theft  or  breach  of  trust. 

73.    Whenever  any  person  is  convicted  of  an  oflfence 

for  which  under  this  Code  the 

SoliUry  confinement.  ^.^^^.^    ^^^   ^^^^^  ^^    Sentence 

u   2 


62  CHAPTER  III. 

him  to  rigorous  imprisonment,  the  Court  may,  hy 
its  sentence,  order  that  the  oflfender  shall  be  kept  in 
solitary  confinement  for  any  portion  or  portions  of  the 
imprisonment  to  which  he  is  sentenced,  not  exceeding 
three  months  in  the  whole,  according  to  the  following 
scale,  that  is  to  say : — 

A  time  not  exceeding  one  month  if  the  term  of 
imprisonment  shall  not  exceed  six  months. 

A  time  not  exceeding  two  months  if  the  term  of 
imprisonment  shall  exceed  six  months  and  be  less 
than  a  year, 

A  time  not  exceeding  three  months  if  the  term  of 
imprisonment  shall  exceed  one  year. 

74.  In  executing  a  sentence  of  solitary  confine- 
Limit  of  soutapy  ooniino-    p^ut,  such  Confinement  shall 

™®^*-  in  no  case  exceed  fourteen  days 

at  a  time,  with  intervals  between  the  periods  of  soli- 
tary confinement  of  not  less  duration  than  such 
periods ;  and  when  the  imprisonment  awarded  shall 
exceed  three  months,  the  solitary  confinement  shall 
not  exceed  seven  days  in  any  one  month  of  the  whole 
imprisonment  awarded,  with  intervals  between  the 
periods  of  solitary  confinement  of  not  less  duration 
than  such  periods. 

75.  Whoever  having  been  convicted  of  an  oflfence 
Punishment  of  persons  con-    punishablc  uudcr  Chapter  XII. 

Ticted,  after  a  previous  con-      ■■•      ^,         .        -it-wttt      ^  ft  •     ^     i 

▼iotion,of  Ml  ofenceuunish-    Or  Chapter  XVII.  of  this  Code 

able  with  three  years' impxi-  •ii      •'"'         •  <        /»       .ii 

sonment.  With  imprisonment  of  either 

description  for  a  term  of  three  years  or  upwards, 
shall  be  guilty  of  any  offence  punishable  under  either 
of  those  Chapters  with  imprisonment  of  either  de- 
scription for  a  term  of  three  years  or  upwards,  shall 
be  subject  for  every  such  subsequent  oflfence  to 
transportation  for  life,  or  to  double  the  amount  of 
punishment  to  which  he  would  otherwise  have  been 
liable  for  the  same ;  provided  that  he  shall  not  in  any 
case  be  liable  to  imprisonment  for  a  term  exceeding 
ten  years. 


GENEBAL  EXCEPTIONS.  53 

The  offences  referred  to  are  offences  relating  to  Coin  and 
Government  Stamps^  and  tlie  more  serious  offences  against  pro- 
perty. It  "will  be  observed  that  it  is  not  necessary  that  the 
pnnishment  actually  awarded  for  the  first  offence  should  have 
been  imprisonment  for  three  years :  it  is  sufficient  if  the  offence 
be  one  made  punishable  with  imprisonment  for  that  term  or  any 
heavier  punishment. 

And  both  convictions  must  be  of  offences  punishable  under 
this  Code  and  therefore  committed  after  it  comes  in  force. 


Chapter  IV. 
GENERAL  EXCEPTIONS. 


This  Chapter  obviates  the  necessity  of  repeating  in  every 
penal  clause  a  considerable  number  of  limitations. 

Such  exceptions  as  relate  only  to  a  single  provision  or  to  a 
very  small  class  of  provisions  will  be  found  appended  to  the 
Sections  which  they  modify  ;  but  such  exceptions  as  are  com- 
mon to  the  whole  Code,  or  to  a  great  variety  of  clauses  dispers- 
ed over  many  chapters,  are  placed  separately  in  this  Chapter ; 
and,  to  prevent  the  frequent  repetition  of  these  exceptions 
elsewhere,  it  is  provided  (Section  6)  that  every  definition  of  an 
offence,  every  penal  provision,  and  every  illustration,  shall  be 
construed  subject  to  the  provisions  contained  in  this  Chapter. 

Those  by  whom  this  law  will  be  administered  must  bear  in 
mind  that  nothing  is  an  offence, — that  is,  a  thing  made  punish- 
able by  this  Code, — when  it  is  brought  within  any  of  these 
General  Exceptions.  The  detailed  rules  for  guiding  criminal 
trials  belong  to  the  Code  of  Criminal  Procedure.  But  it  may 
be  noticed  here  that  it  is  for  the  accused  person  who  relies 
upon  a  general  exception  to  bring  it  forward  by  way  of  de- 
fence ;  and  that  those  who  prosecute  are  not  bound  in  the  first 


54  CHAFTEE  rV. 

instance  to  aUege  or  to  prove  that  the  case  does  not  come  with- 
in any  of  these  exceptions.* 

Many  of  tiiese  grounds  of  defence  may  require  the  Judge  to 
decide  a  perplexing  question^  namely  what  was  passing  in  the 
mind  of  the  accused  person  at  the  time  of  the  commission  of 
the  alleged  offence.  The  accused  cannot  of  course  prove  direct- 
ly what  was  in  his  mind^  but  he  may  be  able  to  prove  facts  by 
which  this  may  be  made  suj£ciently  manifest. 

76.    Nothing  is  an  oflfence  which  is  done  by  a  per- 
,  ^  ^     ^  ^     ^     son  who  is,  or  who  by  reason 

Act  done  by  a  person  bound,         i«  •ji  i>/*j*^i  j. 

or  bv  mistake  of  fact  beuev-    01  a  mistake  01  fact  and  not 

ing  nimself  bound  by  law.  •■  ^  •   x    i  i*  i 

by  reason  of  a  mistake  of  law 
in  good  faith  believes  himself  to  be,  boimd  by  law  to 
do  it. 

Ulusirations. 

(a)  A,  a  soldier,  fires  on  a  mob  by  the  order  of  his  superior  officer, 
in  conformity  with  the  commands  of  the  law.  A  has  committed  no 
offence. 

(b)  A,  an  officer  of  a  Court  of  Justice,  being  ordered  by  that 
Court  to  arrest  Y,  and,  after  due  enquiry,  believing  Z  to  be  Y,  arrests 
Z.     A  has  committed  no  offence. 

What  a  person  is  bound  by  law  to  do  is  not  an  offence ;  and 
what  a  person  thinks  he  is  bound  by  law  to  do  is  not  an  offence, 
if  he  has  formed  this  opinion  carefully,  (see  Section  52,)  not- 
withstanding that  he  may  have  mistaken  facts.  Ignorance  or 
mistake  of  fact  and  ignorance  or  mistake  of  law  are  not  placed 
on  the  same  footing,  since  law  may  be  and  ought  to  be  com- 

*  The  Code  of  Criminal  Prooednre,  (Act  XXV.  of  1861)  contains  provisiona 
to  the  following  effect  on  this  sabjeot. 

It  shall  not  be  necessary  to  allege  in  the  charge  that  the  case  does  not  oome 
within  any  of  the  Greneral  Exceptions  contained  in  Chapter  IV.  of  the  Penal  Code. 

It  shall  not  be  necessary  at  the  trial,  on  the  part  of  the  prosecutor  to  prore  in 
the  first  instance  the  absence  of  circumstances  showing  that  none  of  the  General 
Exceptions  are  applicable ;  but  the  accused  person  shall  be  entitled  to  give 
evidence  of  the  enstence  of  any  such  circumstances,  and  evidence  in  disproof 
thereof  may  be  given  on  the  part  of  the  prosecutor. 

But  when  the  Section  referred  to  in  the  charge  contains  an  exception  not  being 
one  of  such  Greneral  Exceptions  the  charge  shall  not  be  understood  to  assume  the 
absence  of  circumstances  constituting  this  exception  without  a  distinct  denial  of 
such  circumstances.    Sections  235—237. 


OENEBAL  EXCEPTIONS.  55 

prised  within  certain  limits^  while  the  interpretation  of  facts 
deceires  even  the  most  pmdent.  It  would  be  mischievous  to 
allow  an  accused  person  to  set  up  as  a  defence  his  own  mis- 
taken belief  respecting  some  legal  obligation.  But  there  is 
great  difference  between  doing  a  thing  in  ignorance  of  its  being 
forbidden  by  law^  and  doing  a  thing  in  consequence  of  an  honest 
and  sincere  belief  that  to  leave  it  undone  would  be  disobedience 
to  the  law ;  and  in  awarding  punishment  this  difference  should 
be  allowed  due  weight. 

77.    Nothing  is  an  offence  which  is  done  by  a  Judge 

Art  of  Judge  when  aoting    whcn  acting  judicially  in  the 

^^*^~*"y*  exercise  of  any  power  which 

is,  or  which  in  good  faith  he  believes  to  be,  given  to 

him  hy  law. 

One  who  serves  in  a  judicial  capacity  is  required  to  exercise  a 
judgment  of  his  own ;  and  as  his  duty  obliges  him  to  decide  all 
questions  of  law  and  fact  which  are  submitted  for  his  judgment, 
be  is  not  punishable  for  error  or  mistake  whether  of  fact  or  of 
law.  This  large  exemption  is  conferred  on  him  when  acting 
judicially,  not  only  in  those  cases  in  which  he  proceeds  irregu- 
larly in  the  exercise  of  a  power  which  the  law  gives  to  him, 
but  also  in  cases  where  he  in  good  faith  exceeds  his  jurisdiction 
and  has  no  lawful  powers.  See  the  explanations  of  ''  Judge'^ 
and  of  good  faith.'' 

It  will  sometimes  be  difficult  to  say  whether  a  thing  is  within 
this  exception  as  having  been  done  by  a  Judge  acting  judicially. 
Thus  a  Collector  has  various  duties  of  which  some  are  clearly 
judicial,  others  clearly  not.  He  is  a  Judge  when  exercising 
jurisdiction  in  a  suit  under  Act  X.  of  1859 ;  he  is  not  a  Judge 
when  making  a  settlement.  Under  laws  like  Act  YI.  of  1857 
(for  the  acquisition  of  la/nd  for  public  pv/rposesj  he  •exercises 
functions  some  of  which  are  ministerial  and  others  judicial ; 
and  in  such  cases  all  his  proceedings  will  not  be  within  this 
exception,  although  some  may  be. 


66  CHAPTER  IV. 

It  seems  that  this  exception  applies  to  the  omissions  as  well 
as  to  the  acts  of  Judicial  Officers^  as  if  a  Jndge  should  errone« 
ously  decline  to  exercise  a  jurisdiction  whichhe  really  possesses. 

78.  Nothing  which  is  done  in  pursuance  of,  or 

which  is  warranted  by,    the 

Aot  done  pursoant  to  the       •     3  <  -»  ^       /^         i 

juctaaent  or  order  of  a  Court      judgment    Or    Ordcr  Of  a  Court 

^    ^  ^'  of  Justice,  if  done  whilst  such 

judgment  or  order  remains  in  force,  is  an  oflFence,  not- 
withstanding the  Court  may  have  had  no  jurisdiction 
to  pass  such  judgment  or  order,  provided  the  person 
doing  the  act,  in  good  faith,  believes  that  the  Court 
had  such  jurisdiction. 

The  ministerial  officers  of  Courts  of  Justice  and  other  per- 
sons  are  protected  by  this  Section  against  criminal  liability 
for  what  they  do  in  execution  of  the  orders  or  decrees  of  the 
Judge.  It  is  the  duty  of  such  persons  ordinarily  not  to  ques- 
tion or  dispute  judicial  orders  but  to  obey  them  so  long  as 
they  remain  in  force.  Unless  it  is  known  that  a  judgment  or 
order  is  a  mere  nullity  for  want  of  jurisdiction  in  the  Court 
which  makes  it,  those  who  act  under  it  are  protected.  Any 
error  or  mistake,  whether  of  fact  or  of  law,  in  executing  the 
judgment  or  order  may  also  be  deemed  to  be  protected  by  this 
Section. 

79.  Nothing  is  an  oflfence  which  is  done  by  any 
Act  done  bj  a  person  justi-    persou  who  is  justified  by  law, 

SM  iLS^^M^tWd  *i>V  or  who,  by  reason  of  a  mistake 
^^-  of  fact  and  not  by  reason  of  a 

mistake  of  law,  in  good  faith  believes  himself  to  be 
justified  by  law  in  doing  it. 

niustratton. 

A  sees  Z  commit  what  appears  to  A  to  be  a  murder.  A,  in  tlie 
exercise,  to  the  best  of  his  judgment,  exerted  in  good  faith,  of  the 
power  which  the  law  gives  to  all  persons  of  apprehending  murderers 
m  the  fact,  seizes  Z,  in  order  to  bring  Z  before  the  proper  authorities. 
A  has  committed  no  offence,  though  it  may  turn  out  that  Z  was  aot« 
ing  in  self-defence. 


GENITBAL  EXCEPTIONS.  57 

What  the  law  jastifies  is  no  offeQce ;  and  what  a  person  in 
good  faith  believes  that  the  law  justifies  him  in  doing  is  not 
an  offence^  although  his  belief  may  be  founded  on  a  mistake 
of  facts. 

The  protection  of  this  Section  is,  it  seems,  given  only  where 
there  is  some  law  or  colour  of  law  to  justify  what  is  done; 
it  extends  not  to  things  the  doing  of  which,  though  not  prohi- 
bited by  any  law,  cannot  be  said  to  be  justified. 

80.     Nothing  is  an  offence  which  is  done  by  acci- 
Aoddent  in  the  doing  of  a    dcnt  OF  misfortuno  and  with- 
uwtuimct.  Q^^  ^^j  criminal  intention  or 

knowledge  in  the  doing  of  a  lawful  act  in  a  lawful  man- 
ner by  lawful  means  and  with  proper  care  and  caution. 

Illustration, 

A  is  at  work  with  a  hatchet  ;  the  head  flies  off  and  kills  a  man 
who  is  standing  by.  Here,  if  there  was  no  want  of  proper  caution 
on  the  part  of  A,  his  act  is  excusable  and  not  an  offence. 

This  illustration  supposes  a  case  in  which  an  effect  is  caused 
by  means  which  were  not  intended  or  known  to  be  likely  to 
cause  it.  The  event  happens  by  accident  and  without  the 
concurrence  of  the  will  of  the  person  who  causes  it.  If  the 
will  concurs  in  causing  the  effect,  but  this  concurrence  arises 
from  some  erroneous  impression  on  the  mind,  it  is  the  same, 
— as  if  A  shoot  an  innocent  but  unknown  man,  believing  him 
to  be  a  robber  of  whose  attempt  he  has  been  apprised. 

To  punish  as  offences  things  thus  done  by  accident  or  mis- 
fortune, would  commonly  be  to  add  to  the  sufferings  of  an 
innocent  man,,  the  penalties  intended  for  the  guilty.  And  this, 
without  adding  anything  to  the  security  of  human  life  or 
property,  since  no  punishment  inflicted  on  the  unfortunate  can 
prevent  the  recurrence  of  accidents  and  misfortunes. 

The  exception  requires  that  ''proper  care  and  caution'' 
should  be  used.  Generally  in  the  common  affairs  of  life  that 
degree  of  attention  and  care  which  a  man  of  ordinary  prudence 
and  activity  employs  in  his  daily  occupations  is  ''  proper  care 
and  caution  ;"  and  extraordinary  circumspection  and  diligence 
I 


58  CHAPTER  IT. 

are  not  required.  But  if  a  man  takes  npon  himself  an  oflBce  or 
duty  requiring  skill,  he  must  be  competent  to  what  he  under- 
takes. Thus  a  person,  whether  a  medical  man  or  not,  who 
deals  with  the  life  or  health  of  another,  having  no  skill  or 
knowledge  of  medicine  to  justify  him,  cannot  be  said  to  use 
proper  care  and  caution. 

The  nature  of  the  thing  done  and  the  time  and  place  of  doing 
it,  must  be  considered.  If  a  man  in  building  or  repairing 
a  house  throws  a  stone  from  it  into  the  street  or  way  and 
causes  death  or  hurt, — if  he  do  this  in  a  street  where  many 
persons  are  passings  he  will  not  be  protected,  unless  he  can 
show  that  he  acted  with  great  caution  and  gave  warning  before 
hand  to  the  passers-by ;  but  if  he  do  it  in  a  retired  place  where 
there  was  no  probability  of  persons  passing  by,  and  none  had 
been  seen  about  the  spot  before,  it  seetns  that  he  acts  with 
sufficient  caution  and  therefore  commits  no  offence. 

The  exception  requires  that  the  act  done  shall  not  only  be 
lawful  in  itseU',  but  shall  be  done  in  a  lawful  manner  by  lawful 
means.  Parents  and  masters  may  lawfully  administer  reason- 
able correction  to  children  under  their  care,  but  if  a  child  is 
flogged  immoderately  or  with  an  improper  instrument,  and 
death  or  hurt  ensues,  the  present  exception  will  not  protect 
the  offender. 

The  expression  "  a  lawfiil  act"  probably  means  an  act  lawful 
by  the  general  laws  of  the  land.  There  are  many  acts  in  them- 
selves indifferent  which,  for  reasons  of  convenience  or  policy, 
are  forbidden  to  be  done  at  certain  times  or  in  certain  places. 
Thus  withiil  the  Presidency  Towns,  the  Police  and  Conservan- 
cy laws  make  many  harmless  things  unlawful.  A  person  who  is 
in  all  other  respects  entitled  to  the  benefit  of  this  exception, 
would  seem  not  to  be  deprived  of  it,  because  his  act  is  not 
Imjoful  within  the  meaning  of  such  laws. 

81.    Nothing  is  an  oflfence  merely  by  reason  of  its 

A^«^  ,  *  V      X.  I    being  done  with  the  know- 

Aotllkelyto  cause  harm  but      ,-i°.,      i-i-     i«ii      j. 
done  without  a  criminal  in-      ledSTe  that  it  IS  likely  tO  CaUS6 
tent    and   to  prevent  other      .      ^        -i.    -j.    r        j  -Ji         i 

twm.  harm,  if  it  be  done  without 


GENERAX  IXCEWIONS,  69 

any  criminal  intention  to  cause  harm,  and  in  good 
faith  for  the  purpose  of  preyenting  or  avoiding  other 
harm  to  person  or  property. 

Ea^lanation. — It  is  a  question  of  fact  in  such  a  casQ 
whether  the  harm  to  be  prevented  or  avoided  was  of 
such  a  nature  and  so  imminent  as  to  justify  or  ex- 
cuse the  risk  of  doing  the  act  with  the  knowledge  that 
it  was  likely  to  cause  harm. 

lUmtrationi. 

(a)  A,  the  Captain  of  a  Steam  Vessel,  suddenly  and  without  any 
lai^t  or  negligence  on  lib  part,  finds  himself  in  such  a  position  that* 
before  he  can  stop  his  vessel,  he  must  inevitablv  run  down  a  boat  6. 
with  20  or  30  passengers  on  board,  unless  he  changes  the  course  of 
his  vessel,  and  that  by  changing  his  course,  he  must  incur  ritfk  of 
ninning  down  a  boat  C  with  only  2  passengers  on  board,  which  he 
may  possibly  clear.  Here,  if  A  alters  his  course  without  any  intention 
to  run  down  the  boat  C  and  in  good  faith  for  the  purpose  of  avoiding 
the  danger  to  the  passengers  in  the  boat  B,  he  is  not  guilty  of  an 
offence,  though  he  may  run  down  the  boat  C  by  doing  an  act  which 
he  knew  was  likely  to  cause  that  effect,  if  it  be  found  as  a  matter  of 
foot  that  the  danger  which  he  intended  to  avoid  was  such  as  to  ex- 
cuse him  in  incurring  the  risk  of  running  down  0. 

(b)  A  in  a  great  fire  pulls  down  houses  in  order  to  prevent  the 
condagration  fVom  spreading.  He  does  this  with  the  intention  in 
good  &th  of  saving  human  life  or  property.  Here,  if  it  be  found 
that  the  harm  to  be  prevented  was  of  such  a  nature  and  so  imminent 
as  to  excuse  A's  act,  A  is  not  guilty  of  the  offence. 

82.  Nothing  is  an  offence  which  is  done  by  a  child 
Act  of  a  child  undBP  7  years    undcr  scvcn  ycars  of  age. 

of  ace* 

83.  N.othing  is  an  offence  which  is  done  by  a  child 
▲eiof  a  child  aboT*  7  and    abovc  scvcn  yc^rs  of  agc  and 

"^IS^SSt^^^xJ^f^^  under  twelve,  who  has  not 
dersto^Sinc.  attained  sufficient  maturity  of 

understanding  to  judge  of  the  nature  and  consequences 
of  his  conduct  on  that  occasion. 

Nothing  is  made  punishable  by  this  Code  which  is  done 
by  a  child.  For  although  a  child  may  be  conscious  of  an  act 
done^  its  understanding  does  not  reach  to  the  conscioosnoss 
of  that  act  being  an  offence ;  aud  criminality  depends  not  upon 
the  couBciousneBfi  of  an  act  but  upon  the  knowledge  of  its 
quality. 

I  2 


6(y  CHAPTER  IV. 

The  present  exception  does  not  extend  to  those  children 
between  the  ages  of  7  and  12  years  who  are  able  to  understand 
the  nature  and  consequences  of  their  conduct.  It  belongs 
rather  to  the  law  of  procedure  than  to  this  Code  to  determine 
what  shall  be  the  course  of  proof  upon  the  trial  of  a  child  above 
7  years  of  age  :  but  it  seems  that  the  age  of  the  accused  being 
once  established^  and  the  case  so  far  brought  within  the  excep- 
tion, the  Court  cannot  convict,  until  the  prosecution  has  proved 
such  maturity  of  understanding  as  makes  the  accused  cri« 
minally  responsible  in  the  particular  case.  The  degree  of 
proof  to  be  required  may  depend  on  the  age ;  for  there  is  a  wide 
difference  between  the  cases  of  two  children,  one  of  whom  is  a 
day  short  of  twelve,  and  the  other  a  day  over  seven  years  old. 

In  some  offences,  immaturity  of  body — a  want  of  physical 
capacity  to  do  an  act — may  exempt  children  from  criminal  re- 
sponsibility.    See  Section  875. 

84.  Nothing  is  an  offence  which  is  done  by  a  person 
Act  of  a  person  of  unsound    ^^o,  at  the  time  of  doing  it, 
»^**-  by  reason  of  unsoundness  of 

mind,  is  incapable  of  knowing  the  nature  of  the  act, 
or  that  he  is  doing  what  is  either  wrong  or  contrary 
to  law.* 


*  The  English  Judges,  with  one  exception,  in  answer  to  a  question  put  to 
them  by  the  House  of  Lords  in  1844,  as  to  the  terms  in  which  the  question 
respeotiug  the  prisoner's  state  of  mind  at  the  time  when  the  act  was  committed, 
ought  to  be  proposed  to  the  jmy,  stated — "  The  jury  ought  to  be  told  in  all 
cases  that  every  man  is  presumed  to  be  sane,  and  to  possess  a  sufficient  degree 
of  reason  to  be  responsible  for  his  crimes,  imtil  the  contraiy  be  proved  to  <^eir 
satisfaction :  and  that  to  establish  a  defence  on  the  ground  of  insanity,  it  must 
be  clearly  proved  that,  at  the  time  of  the  committing  of  the  act,  the  party  accused 
was  labouring  under  such  a  defect  of  reason,  from  disease  of  the  mind,  as  not  to 
know  the  nature  and  quality  of  the  act  he  was  doing ;  or  if  he  d/id  know  it,  that 
he  dfld  not  know  he  was  doing  what  was  wrong" 

With  reference  to  this  latter  part  of  the  question  to  be  proposed  to  the  jury, 
the  Judges  remark,  "  The  mode  of  putting  it  has  generally  been  whether  the 
accused,  at  the  time  of  doing  the  act,  knew  the  difference  between  right  and 
wrong  J  which  mode,  though  rarely,  if  ever,  leading  to  any  mistake  with  the 
juiy,  is  not  as  we  conceive  so  accurate  when  put  generally,  and  in  the  abstract,  as 
when  put  with  reference  to  the  party's  knowledge  of  right  and  wrong,  in  respect 
to  the  very  act  with  which  he  is  charged." 

They  add,  "  If  the  question  were  to  be  put  as  to  the  knowledge  of  the  accused, 
solely  and  exclusively  with  reference  to  the  law  of  the  land,  it  might  tend  to  con- 
found the  jury,  by  inducing  them  to  believe  that  an  actual  knowle^^  of  the  law  of 


GENERAL  EXCEPTIONS.  61 

Whether  the  want  of  capacity  is  temporary  or  permanent^- 
natural  or  supervening,  whether  it  arises  from  disease  or 
exists  from  the  time  of  birth,  it  is  included  in  the  expression 
"unsoundness  of  mind."  Thus  an  idiot  who  is  a  person 
without  understanding  from  his  birth,  a  lunatic  who  has 
intervals  of  reason,  and  a  person  who  is  mad  or  delirious,  are 
all  persons  of  ''  unsound  mind." 

There  are  numerous  degrees  of  insanity.  It  has  been  said 
that  not  every  little  cloud  floating  over  an  otherwise  enlightened 
understanding  will  exempt  from  criminal  responsibility;  nor 
on  the  other  hand,  will  every  glimmering  of  reason  over  the 
darkness  of  a  troubled  mind,  subject  the  unfortunate  being  to 
the  heavy  pains  provided  for  wilful  wrong-doing.  According 
to  the  Code,  unsoundness  of  mind,  to  make  a  man  irresponsible, 
must  reach  that  degree  which  is  described  in  the  latter  part 
of  this  General  Exception. 

An  idiot  or  lunatic,  even  if  he  is  conscious  of  his  act,  has 
not  capacity  to  know  its  nature  and  quality,  and  is  therefore  not 
responsible.  Madmen,  especially  those  under  the  influence  of 
some  delusion,  may  have  capacity  enough  to  know  the  nature 
of  the  act,  but  unless  they  also  know  that  they  are  doing 
*'what  is  either  wrong  or  contrary  to  law,"  they  are  not  respon- 
sible. A  common  instance  is,  where  a  man  fully  believes  that 
the  act  he  is  doing  (e.  g.  killing  another  man)  is  done  by  the 
immediate  command  of  God  :  he  acts  under  the  delusive  belief 
that  what  he  is  doing  is  by  the  command  of  a  superior  power 
which  supersedes  all  human  laws.  Again,  a  person  under  an 
insane  delusion  as  to  existing  facts,  supposes  another  man  to 
be  in  the  act  of  taking  away  his  life,  and  he  kills  that  man,  as 
he  believes  in  self-defence  : — he  is  not  responsible.  But  if  his 
delusion  was,  that  the  deceased  had  inflicted  some  injury  on 

the  land  was  essential  in  order  to  lead  to  conviction ;  whereas  the  law  is  adminis- 
tered upon  the  principle  that  every  one  must  be  taken  conclusively  to  know  it, 
without  proof  that  he  does  know  it.  If  the  accused  were  conscious  that  the  act 
was  one  which  he  ought  not  to  do,  and  if  that  act  was  at  the  same  iime  contrary 
to  the  law  of  the  land,  he  is  punishable.*' 


62  CHAPTER  IV. 

him  or  had  caused  the  death  of  hia  relations^  &o.^  and  he  killed 
him  in  revenge  for  such  supposed  injury^  he  would  be  liable  to 
punishment. 

As  to  the  knowledge  that  what  is  done  is  ''  either  wrong  or 
contrary  to  law/'  it  must  be  remembered  that  the  law  is 
administered  upon  the  principle  that  every  one  knows  it^  as  he 
is  bound  to  know  it.  The  question  in  each  caae  must  be^ 
whether  the  accused  person  was  in  a  state  to  know  the  nature 
of  the  act  and  its  criminal  character  as  against  the  law  (which 
he  is  bound  to  know)  of  the  land^ — or^  what  is  in  substance  the 
eame^  whether  he  was  conscious  of  doing  what  he  ought  not 
to  do.  The  inquiry  must  be  directed  to  the  particular  thing 
done  and  not  to  any  other^  because  a  man  may  be  responsible 
for  some  things,  and  not  for  others.  Of  course  also  it  has 
reference  to  the  time  of  the  transaction^  and  not  to  any  other 
time.  But  to  ascertain  the  state  of  the  mind  at  that  particular 
time,  its  condition  both  before  and  after  may  be  inquired  into. 

It  is  understood  in  science,  and  it  has  sometimes  been  recog* 
nized  in  law,  that  a  person  may  be  conscious  of  what  he  is 
doing,  may  know  the  moral,  legal,  and  natural  consequences  of 
his  act,  and  yet  may  be  impelled  to  do  the  thing  by  a  power 
which  he  cannot  resist.  This  Code,  however,  does  not  appear 
to  admit  of  any  such  excuse  as  homicidal  mania,  or  an  irresis- 
tible impulse  to  destroy  life. 

Insanity  is  usually  relied  on  by  way  of  defence  in  charges  of 
murder,  and  of  o£fences  against  the  person.  In  offences  against 
property  such  as  theft,  cheating,  &c.,  which  often  require  some 
art  and  skill  for  their  completion,  and  argue  a  sense  of  the 
advantage  of  acquiring  other  people's  property,  this  defence 
must  be  received,  as  indeed  it  should  in  all  cases  be  received, 
with  the  utmost  caution. 

86.     Nothing  is  an  oflfence  which  is  done  by  a  per- 
son who,  at  the  time  of  doing 

Act  of  a  person  incapable  of      -j.    •     v  i»«    j.       •      x* 

judgment  by  reason  of  intoxi-      it,  IS,  DV  reaSOn  01  intOXlCatlOn, 

o.2roncu.ed«M«thi.wm.    ^^^J^^^  ^^  kjiowing  the  na- 


GENERAL  EXCEPTIONS.  63 

ttire  of  the  act,  or  that  he  is  doing  what  is  either 
wrong,  or  contrary  to  law ;  provided  that  the  thing 
which  intoxicated  him  was  administered  to  him  with- 
out his  knowledge  or  against  his  will. 

Yolantary  drunkenness  is  not  an  excase  for  crime.  Bat  if  a 
man  is  made  drunk  through  stratagem  or  the  fraud  of  others, 
or  through  ignorance,  (as  if  a  doctor  should  administer  a  drug 
being  ignorant  of  its  intoxicating  power^)  or  through  any  other 
means  causing  intoxication  without  the  man^s  knowledge  or 
against  his  will,  he  is  excused.  He  is  excused  if  his  intoxica- 
tion reaches  such  a  degree  as  to  make  him,  like  an  insane 
person,  incapable  of  knowing  the  nature  and  criminality  of  his 
act. 

Many  men, — ^it  is  said,  especially  soldiers  who  have  been 
severely  wounded  in  the  head, — well  know  that  the  immediate 
consequence  of  drinking  to  intoxication  is  to  bring  on  a  state 
of  temporary  insanity.  Such  persons  seem  to  be  criminally 
responsible  as  much  as  those  who  take  an  intoxicating  drug  or 
spirit  to  stimulate  their  courage  to  commit  a  crime. 

If  habitual  drunkenness  has  created  a  fixed  insanity  whether 
permanent  or  intermittent,  as  for  instance,  delirium  tremens,  it 
is  the  same  as  if  insanity  had  been  produced  by  any  other 
cause  and  the  act  is  excused. 

86.    In  cases  where  an  act  done  is  not  an  offence 
ofltooereqniriMapartiou.    imless  donc  with  a  particular 
iStSW^^tf ?ntSS:    knowledge  or  intent,  a  person 
~**^  who  does  the  act  in  a  state  of 

intoxication  shall  be  liable  to  be  dealt  with  as  if  he 
had  the  same  knowledge  as  he  would  have  had  if  he 
had  not  been  intoxicated,  unless  the  thing  which 
intoxicated  him  was  administered  to  him  without  his 
knowledge  or  against  his  will. 

A  certain  guilty  knowledge  or  intention  forms  part  of  the 
definitions  of  many  offences. 

Voluntary  drunkenness  in  such  cases  is  no  excuse.  The  ac- 
cused must  be  deemed  to  have  the  same  knowledge  as  he  would 


64  CHAPTER   IV. 

have  had  if  sober ;  but  it  seems  that  his  intoxication  may  be 
taken  into  account  as  throwing  light  on  the  question  of 
intention. 

87.     Nothing  which  is  not  intended  to  cause  death, 

Act  not  intended  and  not      01   gricVOUS   hllPt,    and  which    is 

d^atro^'^lriev/ul^hS!  not  known  by  the  doer  to  be 
done  by  consent.  Ukcly  to  causc  death,  or  grie- 

vous hurt,  is  an  offence  by  reason  of  any  harm  which 
it  may  cause,  or  be  intended  by  the  doer  to  cause,  to 
any  person  above  eighteen  years  of  age,  who  has  given 
consent,  whether  express  or  implied,  to  suffer  that 
harm ;  or  by  reason  of  any  harm  which  it  may  be 
known  by  the  doer  to  be  likely  to  cause  to  any  such 
person  who  has  consented  to  take  the  risk  of  that 
harm. 

Ulustrationa, 

A  and  Z  agree  to  fence  with  each  other  for  amusement.  This 
agreement  implies  the  consent  of  each  to  suffer  any  harm  which,  in 
the  course  of  such  fencing,  may  be  caused  without  foul  play  ;  and 
if  A,  while  playing  fairly,  hurts  Z,  A  commits  no  offence. 

Generally  speaking  every  man  is  free  to  inflict  any  suffering 
or  damage  he  chooses  on  his  own  person  and  property ;  and 
if  instead  of  doing  this  himself,  he  consents  to  its  being  done 
by  another,  the  doer  commits  no  offence.  A  man  may  give 
away  his  property ;  and  so,  another  who  takes  it  by  his  per- 
mission does  not  commit  theft.  He  may  inflict  self-torture,  or 
he  may  consent  to  suffer  torture  at  the  hands  of  another.  But 
the  law,  as  declared  by  this  exception  does  not  permit  him  to 
give  his  consent  to  anything  intended  or  known  to  be  likely 
to  cause  his  own  death  or  grievous  hurt.     See  Section  88. 

Nor  can,  of  course,  any  consent  of  his  extend  to  make  lawful 
an  act  which  is  an  offence  independently  of  the  harm  which  it 
may  cause  to  him.  A,  the  owner  o^  a  house,  may  consent  that 
A  shall  burn  it ;  but  his  consent  to  suffer  this  harm  will  not 
excuse  B  for  any  hurt  or  injury  which  may  thereby  be  done 
to  persons  asleep  in  the  house  or  in  adjacent  houses. 


GENERAL  EXCEPTIONS.  65 

In  a  large  class  of  offences^  suoh  as  offences  against  the  pab- 
Uc  peace^  morals^  healthy  &c.^  this  exception  therefore  cannot 
have  any  operation.     As  to  the  consent^  see  Section  90. 

88.     Nothing,  which  is  not  intended  to  cause  death, 

is  an  oflfence  by  reason  of  any 

Act  not  intended  to   osuse       •■  i.»   -l    •/  . 

death,  done  by  don«ent  in  good  narm  WniCIl  it  may  CaUSO,  Or 
&itl./orthebenefltotaper.on.      ^^    ij^tended    by    the    doCt    tO 

cause,  or  be  known  by  the  doer  to  be  likely  to  cause, 
to  any  person  for  whose  benefit  it  is  done  in  good  faith, 
and  who  has  given  a  consent,  whether  express  or  im- 
plied, to  suffer  that  harm,  or  to  take  the  risk  of  that 
harm. 

Illustratiou. 

Ay  a  surgeon,  knowing  that  a  particalar  operation  is  likely  to  cause 
the  death  of  Z,  who  suffers  Under  a  painful  complaint,  but  not 
intending  to  cause  Z's  death  and  intending,  in  good  faith,  Z*s  benefit, 
performs  that  operation  on  Z,  with  Z's  consent.  A  has  committed 
no  offence. 

No  consent  can  justify  an  intentional  causing  of  death.  But 
a  person  for  whose  benefit  a  thing  is  done^  may  consent  that 
another  shall  do  that  thing,  even  if  death  may  probably  ensue. 
It  is  often  the  wisest  thing  that  a  man  can  do  to  expose  his  life 
to  great  hazard.  It  is  often  the  greatest  service  that  can  be 
rendered  to  him  to  do  what  may  very  probably  cause  his  death. 
He  may  labour  under  a  cruel  and  wasting  malady  which  is  certain 
to  shorten  his  life^  and  which  renders  his  life^  while  it  lastSj 
useless  to  others  and  a  torment  to  himself.  Suppose^  that  under 
these  circumstances^  he  gives  his  free  and  intelligent  consent  to 
take  the  risk  of  an  operation  which  in  a  large  proportion  of 
cases  has  proved  fatal^  but  which  is  the  only  method  by  which 
his  disease  can  possibly  be  cured^  and  which^  if  it  succeeds^ 
will  restore  him  to  health  and  vigour;  the  person^  who  with 
due  care  and  skilly  performs  the  operation^  commits  no  offence. 

Again^  if  a  person  attacked  by  a  wild  beast  should  call  out 

to  his  friends  to  fire^  though  with  imminent  hazard  to  himself^ 

and  they  were  to  obey  the  call,  they  would  commit  no  ofience, 

though  by  firing  they  might  cause  his  death,  and  though  when 

K 


66  CHAPTEE  IV. 

they  fired  they  knew  themselves  to  be  likely  to  canse  his  death. 
See  the  explanations  of  "  good  faitV'  (Section  5  2),  "  benefit" 
(Section  92,  Ihcplwnation),  **  consent''  (Section  90). 

89.  Nothing  which  is  done  in  good  faith  for  the 
Act  done  in  good  fwth  for  benefit  of  a  person  undertwelve 
^^fS^i'i^^^^l^Vlr  ye^J^s  of  age,  or  of  unsound 
oonsentof  guvdian.  imvL^,  by  ot  by  cousent,  either 

express  or  implied,  of  the  guardian  or  other  person 
haying  lawful  charge  of  that  person,  is  an  offence  by 
reason  of  any  harm  which  it  may  cause,  or  be  intend- 
ed by  the  doer  to  cause,  or  be  known  by  the  doer  to 
proviioei.  be  likely  to  cause,  to  that  per- 

son: Provided— 

First.  That  this  exception  shall  not  extend  to  the 
intentional  causing  of  death,  or  to  the  attempting  to 
cause  death ; 

Secondly.  That  this  exception  shall  not  extend  to 
the  doing  of  any  thing  which  the  person  doing  it 
knows  to  be  likely  to  cause  death,  for  any  purpose 
other  than  the  preventing  of  death  or  grievous  hurt ; 
or  the  curing  of  any  grievous  disease  or  infirmity ; 

Thirdly.  That  this  exception  shall  not  extend  to 
the  voluntary  causing  of  grievous  hurt,  or  to  the  at- 
tempting to  cause  grievous  hurt,  unless  it  be  for  the 
purpose  of  preventing  death  or  grievous  hurt,  or  the 
curmg  of  any  grievous  disease  or  infirmity. 

Fourthly.  That  this  exception  shall  not  extend  to 
the  abetment  of  any  offenqe,  to  the  committing  of 
which  oflFence  it  woidd  not  extend. 

Illustration. 

A,  in  good  faith,  for  his  child's  benefit,  without  his  child's  consent, 
has  his  child  cut  for  the  stone  by  a  surgeon,  knowing  it  to  be  likely 
that  the  operation  will  cause  the  child's  death,  but  not  intending  to 
cause  the  child's  death.  A  is  within  the  exception,  inasmuch  as  his 
object  was  the  cure  of  the  child. 

A  child  may  meet  with  an  accident  which  may  render  the 
amputation  of  a  limb  necessary  :  or  a  lunatic  may  be  in  a  state 
which  makes  it  proper  that  he  should  be  put  into  a  strait 
waistcoat.    This  Section  provides  that  the  consent  of  the  guar* 


GENERAL  EXCEPTIONS.  67 

dian  shall^  to  a  great  extent^  have  the  effect  whioh  the  consent 
of  the  sufferer  himself  would  have,  if  the  sufferer  were  of  ripe 
age  and  sound  mind. 

But  because  there  is  considerable  danger  in  allowing  people 
to  assume  the  office  of  judging  for  others  in  such  cases,  some 
restrictions  are  imposed  on  the  guardian's  power  to  consent, 
besides  the  requisites  of  good  faith  and  benefit  to  the  sufferer. 
Every  man  always  intends  in  good  faith  his  own  benefit,  and 
has  a. deeper  interest  in  knowing  what  is  for  his  own  benefit 
than  any  body  else  can  have.  Therefore  that  he  gives  a  free 
and  intelligent  consent  to  suffer  pain  or  loss,  creates  a  strong 
presumption  that  it  is  good  for  him  on  the  whole  to  suffer  that 
pain  or  loss.  But  the  interest  of  his  neighbours  is  not  to  be 
confided  to  him  in  the  same  unreserved  manner  in  which  we 
confide  to  him  his  own,  even  when  h6  sincerely  intends  to  bene^ 
fit  his  neighbours.  For  even  parents  have  been  known  to  deliver 
their  children  up  to  slavery  in  a  foreign  country,  to  inflict  the 
most  cruel  mutilations  on  their  male  children,  to  sacrifice  the 
chastity  of  their  female  children,  and  to  do  all  this  declaring, 
and  perhaps  with  truth,  that  their  object  was  something  which 
they  considered  as  advantageous  to  the  children.  For  these 
reasons  where  the  consent  required  is  that  of  some  one  other 
than  the  individual  himself,  some  thing  more  than  mere  good 
faith  and  the  benefit  of  the  sufferer  are  by  this  Section  made 
necessary. 

The  effect  of  this  exception,  and  of  the  limitations  whioh  the 
proviso  attaches  to  it,  is  further  shown  by  the  following  illus- 
trations— 

A,  a  parent,  whips  his  child  moderately  for  the  child's  benefit. 
A  has  committed  no  offence. 

A  confines  his  child,  for  the  child's  benefit.  A  has  committed 
no  offence. 

A,  in  good  faith  for  his  daughter's  benefit,  intentionally  kills 
her  to  prevent  her  from  falling  into  the  hands  of  a  band  of 
robbers  and  murderers,  who  are  about  to  attack  his  house.     A 
i8  not  within  the  exception. 
K  2 


68  CHAPTER  IV. 

90.  A  consent  is  not  such  a  consent  as  is  intended 

Ooneent  known  to  be  given  l>y  any  Scction  of  this  Codc, 
under  fear  or  misoonoeplion.       Jf   ^J^^    COnSCnt    is    glVCn    by  a 

person  under  fear  of  injury  or  under  a  misconception 
pf  fact,  and  if  the  person  doing  the  act  knows,  or  has 
reason  to  believe,  that  the  consent  was  given  in  con- 
sequence of  such  fear  or  misqonception — Or 

If  the  consent  is  given  by  a  person  who  from  un* 

Consent  of  a  ohU4  or  person      SOUnduCSS    of  miud    Or  iutoxi- 

Of  nnsound  mind.  catiou  is  unablc  to  Understand 

the  nature  and  consequence  of  that  to  which  he  gives 
his  consent ;  or,  imless  the  contrary  appears  from  the 
context,  if  the  consent  is  given  by  a  person  who  is 
under  twelve  years  of  age, 

A  free  and  intelligent  consent  mnst  be  given.  Fear  of 
injary  or  mistake  of  fact  are  npt  consistent  with  such  a  consent. 
Suppose  an  ignorant  person  to  represe^t  hipuself  as  having 
skill  to  perform  a  difificult  operation,  and  by  this  pretence  to 
obtain  consent  to  perform  it,  such  cons&|it  can  avail  him  nothing. 
Put  where  the  facts  which  invalidate  a  coi^sei^t  are  unknown  to 
the  person  to  whom  it  is  given,  as  if  other  persoi^s  without  his 
knowledge  represent  that  he  possesses  medical  skill,  and  thus 
obtain  consent  to  his  administering  a  potent  medicine,  ^c,  this 
will  pot  make  the  consent  invalid. 

This  Section  is  rather  a  General  Explanation  than  a  Genera} 
Exception. 

91.  The  exceptions  in  Sections  87,  88,  and  89,  do 
^  ^     ^.  ^        ,       not  extend  to  acts  which  are 

Acts  whioli  are  offences  in-         /»  •     j  i       x  i        a 

dependentiyofharm  caused  to    oiiences  indopencientlY  ot  any 

theperson  consenting,  are  not      •,  -l*   -l    fv 

witEintheexoentions  inSeo-  harm  WhlCh  thCV  maV  CaUSC, 
iiozts  87, 88,  and  89.  -L'xjji"  i. 

or  he  intended  to  cause  or  Dp 
jjcnown  to  he  likely  to  cause,  to  the  person  giving  the 
consent,  or  on  whose  behalf  the  consent  is  given. 

Illustration. 

CauBing  miscarriage  (unless  causied  in  good  faith  for  the  purpose  of 
saving  the  life  of  the  woman)  is  an  offence  independently  of  any  harm 
which  it  may  cause  or  b^  intended  to  cause  to  the  woman.  Therefore 
it  is  not  an  offence  **  by  reason  of  such  harm ;"  and  the  consent  of 


GENERAL  EXCEPTIONS.  69 

the  woman  or  of  her  guardian  to  the  causing  of  such  miscarriage 
doee  not  justify  the  act. 

92.     Kothing  is  an  offence  by  reason  of  any  harm 

whicli  it  may  cause  to  a  per- 

Aot  done  in  good  faith  for  «  ,        "  ••  xsj.  'j.  •     j 

the  benefit  of »  person  *with-  son  lor  wiiose  Denent  it  IS  dono 
outoonsent.  ^  good  faith,  cven  without 

that  person's  consent,  if  the  circumstances  are  such 
that  it  is  impossible  for  that  person  to  signify  consent, 
or  if  that  person  is  incapable  of  giving  consent,  and  has 
no  guardian  or  other  person  in  lawful  charge  of  him 
from  whom  it  is  possible  to  obtain  consent  in  time 

for  the  thing  to  be  done  with 
benefit.     Provided — 

First.  That  this  exception  shall  not  extend  to  the 
intentional  causing  of  death,  or  the  attempting  to 
cause  death. 

Secondly.  That  this  exception  shaU  not  extend  to 
the  doing  of  any  thing  which  the  person  doing  it 
knows  to  be  likely  to  cause  death,  for  any  purpose 
other  than  the  preventing  of  death  or  grievous  hurt 
or  the  curing  of  any  grievous  disease  or  infirmity. 

Thirdly.  That  this  exception  shall  not  extend  to 
the  voluntary  causing  of  hurt,  or  to  the  attempting 
to  cause  hurt,  for  any  purpose  other  than  the  prevent- 
ing of  death  or  hurt. 

Fourthly.  That  this  exception  shall  not  extend  to 
the  abetment  of  any  offence,  to  the  committing  of 
which  offence  it  would  not  extend. 

Illustrationa, 

(a)  Z  is  thrown  from  his  horse,  and  is  insensihle.  A,  a  surgeon, 
finds  that  Z  requires  to  he  trepanned.  A,  not  intending  Z's  death, 
hut  in  good  faith,  for  Z's  henefit,  performs  the  trepan  hefore  Z 
reooYers  his  power  of  judging  for  himself.  A  has  committed  no  offence, 

(h)  Z  is  carried  off  hy  a  tiger.  A  fires  at  the  tiger,  knowing  it 
to  he  likely  that  the  shot  may  kill  Z,  hut  not  intending  to  kill  Z, 
and  in  good  faith  intending  Z's  henefit.  A*s  hall  gives  Z  a  mortal 
wound.     A  has  committed  no  offence. 

(e)  A,  a  surgeon,  sees  a  child  suffer  an  accident  which  is  likely 
to  prove  fatal  unless  an  operation  he  immediately  performed.  There 
is  not  time  to  apply  to  the  child's  guardian.  A  performs  the  oper- 
ation in  spite  of  the  entreaties  of  the  child,  intendmg,  in  good  fiEuth| 
the  child's  beneQt.    A  has  CQmmit^d  no  offence. 


70  CHAPTER  rvr. 

(J)  A  is  in  a  house  which  is  on  fire,  with  Z,  a  child.  People 
below  hold  out  a  blanket.  A  drops  the  child  from  the  house-top, 
knowing  it  to  be  likely  that  the  fall  may  kill  the  child,  but  not 
intending  to  kill  the  child,  and  intending,  in  good  faith,  the  child's 
benefit.  Here,  even  if  the  child  is  killed  by  the  fall,  A  has  conunit- 
ted  no  offence. 

Explanation. — Mere  pecuniary  benefit  is  not  benefit 
within  the  meaning  of  Sections  88,  89,  and  92. 

In  these  examples  there  is  what  may  be  called  a  temporary 
guardianship  justified  by  the  exigency  of  the  case  and  by  the 
humanity  of  the  motive.  This  Section  extends  to  acts  done  in 
the  exercise  of  this  temporary  guardianship  a  protection  very 
similar  to  that  given  by  Section  89,  to  the  acts  of  regular 
guardians. 

93.  No  communication  made  in  good  faith  is  an 
oommTmioation   made  in    oflfencc  by  rcason  of  any  harm 

good  faith.  ^Q  ^YiQ  person  to  whom  it  is 

made,  if  it  be  made  for  the  benefit  of  that  person. 

lllu9tration, 

A,  a  surgeon,  in  good  faith,  communicates  to  a  patient  his  opinion 
that  he  cannot  live.  The  patient  dies  in  consequence  of  the  shock. 
A  has  committed  no  offence,  though  he  knew  it  to  he  likely  that  the 
communication  might  cause  the  patient's  death. 

94.  Except  murder  and  offences  against  the  State 
Actto whiohapepsoniioom-    Punishable with  death,  nothing 

pened  by  threats.  Jg  ^^  offcncc  wMch  is  done  by 

a  person  who  is  compelled  to  do  it  by  threats,  which, 
at  the  time  of  doing  it,  reasonably  cause  the  appre- 
hension that  instant  death  to  that  person  will  other- 
wise be  the  consequence ;  provided  the  person  doing 
the  act  did  not  of  his  own  accord,  or  from  a  reason- 
able apprehension  of  harm  to  himself  short  of  instant 
death,  place  himself  in  the  situation  by  which  he 
became  subject  to  such  constraint. 

Explanation  1. — ^A  person  who,  of  his  own  accord, 
or  by  reason  of  a  threat  of  being  beaten,  joins  a  gang 
of  dacoits,  knowing  their  character,  is  not  entitled 
to  the  benefit  of  i\m  exception^  on  the  ground  of  his 


GENEEAL  EXCEPTIONS.  71 

having  been  compelled  by  his  associates  to  do  any 
thing  that  is  an  offence  by  law. 

Explanation  2. — A  person  seized  by  a  gang  of  da- 
coits,  and  forced,  by  threat  of  instant  death,  to  do  a 
thing  which  is  an  offence  by  law,  for  example,  a  smith 
compelled  to  take  his  tools  and  to  force  the  door 
of  a  house  for  the  dacoits  to  enter  and  plunder  it,  is 
entitled  to  the  benefit  of  this  exception. 

The  law  says  that  a  man  ought  rather  to  die  himself  than 
escape  death  by  the  marder  of  jan  iunocent  person  or  by 
committing  an  ofienoe  against  the  State.  But  for  all  offences 
except  murder  and  offences  against  the  State,  it  is  sufficient 
excuse  that  the  act  was  done  by  compulsion  of  other  persons 
and  to  save  the  life  of  the  doer  threatened  by  them. 

The  operation  of  this  Section  is  shown  by  the  explanations 
(or  illustrations  as  they  rather  seem)  appended  to  it. 

The  Section  does  not  apply  to  acts  which  a  man  does  of  his 
own  accord  to  save  his  life ;  as  causing  the  death  of  others  by 
jumping  from  a  sinking  ship  into  an  over-loaded  boat :  nor  to 
acts  which  a  man  is  compelled  by  force  to  do  as  if  A  by  force 
takes  the  hand  of  B  in  .which  is  a  weapon^  and  kills  C  with  it. 
It  would  be  cruel  and  useless  to  punish  such  acts,  which  are 
done  without  any  criminal  intention,  and  in  the  case  last  sup* 
posed  without  the  concurrence  of  the  will. 

Suppose  a  person  seized  by  a  band  of  rioters  and  forced  by 
threat  of  instant  death  to  join  them,  commits  or  takes  part  in 
the  commission  of  an  offence.  If  he  seeks  to  excuse  his  sub- 
sequent acts  under  this  exception,  he  must  show  a  duress  con- 
tinning  up  to  the  time  of  the  commission  of  the  act. 

No  exception  will  be  found  in  this  Code  to  exempt  from 
punishment  married  women  who  commit  offences.  The  English 
law  presumes  as  to  some  offences  that  when  a  wife  commits 
them  in  her  husband's  presence,  she  is  not  a  free  agent,  but  acts 
by  coercion ;  and  she  is  therefore  excused  from  punishment. 
When  she  acts  from  such  compulsion  as  this  Section  deems 
sufficient  to.  excuse,  a  married  woman  in  common  with  other 


72  CHAPTER  rvf^ 

persons  will  be  excused^  but  this  Code  gives  her  no  farther 
exemption. 

95.    Nothing  is  an  offence  by  reason  that  it  causes, 
Aotoauiing  slight  harm.  or    that    it    is    intended    to 

cause,  or  that  it  is  known  to  be  likely  to  cause,  any 
harm,  if  that  harm  is  so  slight  that  no  person  of 
ordinary  sense  and  temper  would  complain  of  such 
harm. 

The  framers  of  the  Code  thus  explain  this  Section.  ''The 
Section  is  intended  to  provide  for  those  cases  which,  though, 
from  the  imperfections  of  language,  they  fall  within  the  letter 
of  the  penal  law,  are  yet  not  within  its  spirit,  and  are  all  over 
the  world  considered  by  the  public,  and  for  the  most  part  dealt 
with  by  the  tribunals,  as  innocent.  There  are  innumerable 
acts  without  performing  which,  men  cannot  live  together  in 
society,  acts  which  all  men  constantly  do  and  suffer  in  turn  and 
•  which  it  is  desirable  that  they  should  do  and  suffer  in  turn,  yet 
which  differ  only  in  degree  from  crimes.  That  these  acts  ought 
not  to  be  treated  as  crimes  is  evident,  and  we  think  it  far 
better  expressly  to  except  them  from  the  penal  clauses  of  the 
Code  than  to  leave  it  to  the  judges  to  except  them  in  practice. 
For  if  the  Code  is  silent  on  the  subject,  the  judges  can  except 
these  cases  only  by  resorting  to  one  of  two  practices  which  we 
consider  as  most  pernicious,  by  making  law,  or  by  wresting 
the  language  of  the  law  from  its  plain  meaning.'' 


OP  THE   BIGHT  OP  PRIVATE   DEFKNCB. 

By  this  important  exception  many  acts,  otherwise  criminal, 
are  saved  from  the  operation  of  the  penal  clauses  of  the  Code. 

The  right  of  private  defence  which  existed  before  police  and 
public  tribanals,  still  continues  to  exist,  although  its  exercise 
is  restricted  within  the  limits  appointed  by  law.  This  right 
arises  to  every  man  on  a  reasonable  apprehension  of  danger  to 
himself  or  others,  when  the  protection  of  the  law  and  its  officers 


OENEEAL  BXCEPTIONS.  73 

ceoinot  be  obtainod.  It  exists  for  the  defence  not  only  of  his 
own  person  and  property^  bnt  also  of  the  persons  and  properties 
of  others,  and  it  extends  to  cansing  death  in  some  cases  and 
harm  in  others.  As  the  right  is  founded  not  upon  any  idea  of 
retributive  justice  but  of  preventive  police,  it  cannot  extend 
to  the  inflicting  of  mere  harm  than  is  necessary  for  the  purpose 
of  defence. 

Those  Sections  which  determine  the  precise  extent  to 
which  this  right  may  be  carried  in  various  cases,  should 
be  administered  in  a  sense  not  unfavourable  to  the  free 
exercise  of  the  right.  A  man  suddenly  exposed  to  the  fear 
and  danger  of  an  assault  cannot  predict  the  extent  of  injury 
about  to  be  inflicted  on  him.  Not  only  is  the  right  generally 
called  into  exercise  suddenly,  but  often  the  person  using  it  is 
one  who  cannot  be  supposed  to  have  a  very  accurate  knowlege 
of  the  restrictions  which  the  written  law  has  imposed  on  its 
exercise. 

This  right  of  private  defence  instead  of  being  in  any  way 
adverse  to  the  principal  ends  of  law  rather  promotes  those 
ends.  If  I  kill  a  murderer  in  self-defence,  it  answers  the  pur- 
pose of  the  punishment  which  the  law  inflicts  upon  murderers, 
and  it  also  accomplishes  a  purpose  which  punishment  is  toa 
tardy  to  reach.  The  death  inflicted  on  the  aggressor  tends,  as 
his  punishment  would  tend,  to  deter  from  the  commission  of 
murder ;  and  it  also  prevents,  what  his  punishment  would  not 
prevent,  the  completion  of  the  murderer's  design  in  the  parti* 
cular  instance. 

96.  Nothing  is  an  oflPence  which  is  done  in  the 
Nothing  done  in  prirate  de-    exercisc  of  the  right  of  private 

fenoeUanoflbnoe.  defence. 

97.  Every  person  has  a  right,  subject  to  the  re- 
Bight  of  private  defenoeof    strfctions  Contained  in  Section 

the  Cody  and  of  property.  99^  ^^  defend — 

Mratly.    His  own  hody,  and  the  hody  of  any  other 

person,  against  any  offence  aflfecting  the  human  hody ; 

Secondly.    The  property,  whether  moveahle  or  im- 


74  CHAPTER  IV. 

mbveable,  of  himself  or  of  any  other  person,  against 
any  act  which  is  an  oflfence  falling  under  the  defini- 
tion of  theft,  robbery,  mischief,  or  criminal  trespass, 
or  which  is  an  attempt  to  commit  theft,  robbery, 
mischief,  or  criminal  trespass. 

Offences  against  the  person^  and  snch  offences  against  pro- 
perty as  are,  or  probably  may  be,  accompanied  by  force,  as 
distinct  from  mere  frand,  are  meant. 

98.    When  an  act,  which  would  otherwise  be  a 

certain  offence  is  not  that  of- 

Bight   of  private    defence      /►  v  r  x-l  xi. 

against  the  act  of  a  person  of      lenCC    by    rCaSOn  01   the  yOUtO, 

un«>undmind.&o.  ^^^  ^^^  ^^  maturity  Of  un. 

derstanding,  the  unsoundness  of  mind,  or  the  intoxi- 
cation of  the  person  doing  that  act,  or  by  reason  of 
any  misconception  on  the  part  of  that  person,  every 
person  has  the  same  right  of  private  defence  against 
that  act  which  he  would  have  if  the  act  were  that 
offence. 

Illustrations, 

(a)  Z,  under  the  influence  of  madness,  attempts  to  kill  A.  Z  is 
guilty  of  no  offence.  But  A  has  the  same  right  of  private  defence 
which  he  would  have  if  Z  were  sane. 

(&)  A  enters  hy  night  a  house  which  he  is  legally  entitled  to 
enter.  Z,  in  good  faith,  taking  A  for  a  house-hreaker,  attacks  A. 
Here  Z^  hy  attacking  A  under  this  misconception,  commits  no  offence. 
But  A  has  the  same  right  of  private  defence  against  Z,  which  he 
would  have  if  Z  were  not  acting  under  that  misconception. 

This  right  of  defence  arises  from  the  natural  right  of  self- 
proteotion^  and  not  from  any  supposed  criminality  on  the  part 
of  the  person  who  causes  the  danger.  Although  he  may  be 
blameless^  or  an  insane  person  incapable  of  committing  an 
offence,  I  am  no  more  bound  to  suffer  what  he  attempts  to 
inflict,  than  I  should  be  if  he  had  a  criminal  intention.  Of 
course,  if  the  right  is  exercised  against  a  woman  or  a  child, 
it  must  not  exceed  the  moderate  bounds  which,  in  such  a  case, 
will  ordinarily  be  sufficient. 


GENERAL   EXCEPTIONS.  75 

99.  First.  There  is  no  right  of  private  defence 
Acts  asainst  which  there  is  against  an  act  which  does  not 
no  rigut  of  private  defence.  reasonably  causc  theapprchcn- 
sion  of  death  or  of  grievous  huxt,  if  done,  or  attempted 
to  be  done,  by  a  public  servant  acting  in  good  faith 
under  colour  of  his  office,  though  that  act  may  not 
be  strictly  justifiable  by  law. 

Second.  There  is  no  right  of  private  defence  against 
an  act  which  does  not  reasonably  cause  the  apprehen- 
sion of  death  or  of  grievous  hurt,  if  done,  or  attempted 
to  be  done,  by  the  direction  of  a  public  servant  acting 
in  good  faith  under  colour  of  his  office,  though  that 
direction  may  not  be  strictly  justifiable  by  law. 

Third.  There  is  no  right  of  private  defence  in  case? 
in  which  there  is  time  to  have  recourse  to  the  protec- 
tion of  the  public  authorities. 

Fourth.    The  right  of  private  defence  in  no  case 

Extent  to  which  the  right      CXtCuds    to    the    iuflictiug     of 

may  be  exeroiaed.  morc  harm  than  it  is  necessary 

to  inflict  for  the  purpose  of  defence. 

Explanation  1. — A  person  is  not  deprived  of  the 
right  of  private  defence  against  an  ad;  done,  or  at« 
tempted  to  be  done,  by  a  public  servant,  as  such,  un- 
less he  knows,  or  has  reason  to  believe,  that  the  per- 
son doing  the  act  is  such  public  servant. 

Fxplanation  2. — A  person  is  not  deprived  of  the  right 
of  private  defence  against  an  act  done,  or  attempted 
to  be  done,  by  the  direction  of  a  public  servant,  im- 
less  he  knows,  or  has  reason  to  believe,  that  the 
person  doing  the  act  is  acting  by  such  direction,  or 
imless  such  person  states  the  authority  under  which 
he  acts,  or,  if  he  has  authority  in  writing,  unless  he 
produces  such  authority,  if  demanded. 

Ministerial  officers  of  justice  and  other  public  servants  are 
protected  by  thB  law  in  the  discharge  of  their  duties,  and  if 
questions  arise  touching  any  trivial  excess  or  irregularity  com- 
mitted by  thenr  or  by  their  orders  in  good  faith,  such  questions 
must  be  determined  by  the  civil  tribunals.  The  risk  to  public 
L  2 


76  CHAPTER  IV. 

servants  would  be  extreme  if  any  departure  from  the  strict  letter 
of  their  authority  justified  resistance  to  them.  The  expres- 
sions "  under  colour  of  his  office'^  and  ''  in  good  faith*'  show 
that  the  protection  is  intended  to  be  given  only  to  a  public  ser- 
vant acting  honestly  in  discharge  of  powers  conferred  or  of 
duties  imposed  on  him. 

The  right  of  private  defence  does  not  arise  when  recourse 
may  be  had  to  the  public  authorities.  For  this  right  does  not 
take  the  place  of  the  functions  of  those  public  servants  who  are 
especially  charged  with  the  protection  of  life  and  property  and 
the  apprehension  of  offenders^  and  where  the  assistance  of  the 
public  authorities  can  be  procured^  the  right  cannot  lawfully  be 
exercised.  A  more  definite  rule  may  be  desirable^  but  the  sub- 
ject appears  not  to  admit  of  a  certain  rule.  A  man  may  from 
many  circumstances  of  suspicion  foresee  a  danger  and  have  a 
reasonable  apprehension  of  its  approach ;  and  yet  recourse  under 
the  circumstances  to  the  public  authorities  for  protection  might 
be  deemed  uncalled  for.  Clause  3  of  Section  99  appears  to  con- 
template such  cases  as  those  in  which  a  threatened  danger  {e.  g. 
an  attack  by  clubmen^  &e.)  is  premeditated  and  may  be  foreseen. 

As  the  right  is  given  for  protection  and  not  for  punishment^ 
the  limitation  of  the  right  to  the  inflicting  only  such  harm  as  is 
necessary  for  the  purpose  of  defence  is  proper. 

Explanations  1  amd  2. — ^The  Code  of  Criminal  Procedure 
will  be  found  to  contain  some  rules  for  the  guidance  of  officers 
of  justice  And  persons  who  act  by  their  direction.  (See  Chapter 
V.  Act  XXV.  of  1861.) 

Actual  knowledge  that  a  person  is  a  public  servant^  or  acting 
by  direction  of  a  public  servant,  or  reasonable  ground  of  know- 
ledge, as  from  his  dress,  words,  weapons,  &c.  will  deprive  those 
against  whom  he  acts  of  the  right  of  self-defence.  On  this 
subject  it  is  laid  .down  in  an  English  work  of  authority  (Foster's 
Crown  Law)  that — ''  With  regard  to  these  ministers  of  justice 
who  in  right  of  their  officers  are  conservators  of  the  peace^ 
and  in  that  right  alone  interpose  in  the  case  of  riots  or 
afirays,  it  is  necessary,  in  order  to  make  the  offence  of  killing 


GENBHAL  BXCBPTIOKS.  77 

them  amount  to  murder^  that  the  parties  concerned  should  have 
some  notice  with  what  intent  they  interpose ;  otherwise  the 
persons  engaged  may^  in  the  heat  and  bustle  of  an  afiray,  imagine 
that  they  came  to  take  a  part  in  it.  But  in  these  cases  a  small 
matter  will  amount  to  a  due  notification.  It  is  sufficient^  if  the 
peace  be  commanded,  or  the  officer  in  any  other  manner  declare 
with  what  intent  he  interposeth.  Or  if  the  officer  be  within  his 
proper  district,  and  known  or  but  generally  acknowledged  to 
bear  the  office  he  assumeth,  the  law  will  presume  that  the 
party  killing  had  due  notice  of  his  intent,  specially  if  it  be  in 
the  day  time.  In  the  night  some  further  notification  is  neces- 
sary^ and  commanding  the  peace,  or  using  words  of  the  like 
import,  notifying  his  business,  will  be  sufficient. 

''  I  remember  a  saying  of  a  very  learned  judge,  that  a  con- 
stable's staff  will  not  make  a  constable.  This  is  very  true.  But 
if  a  minister  of  justice  be  present  at  a  riot  or  affray  within  his 
district,  and,  in  order  to  keep  the  peace,  produce  his  staff  of 
office  or  any  other  known  ensign  of  authority  :  this,  I  conceive, 
will  be  a  sufficient  notification  with  what  intent  he  interposeth." 

100.    The  right  of  private  defence  of  the  body  ex- 

^  _.  ^    ^  _.   .      tends,  under  the  restrictions 

defence  of  the  body  £tend8    mentioned  ui  the  last  proced- 

ftooausmsdeftfch.  .^^  Sectlon,  to  the  voluntary 

causing  of  death  or  of  any  other  harm  to  the  assailant, 
if  the  oflfence  which  occasions  the  exercise  of  the  right 
be  of  any  of  the  descriptions  hereinafter  enumerated, 
namely — 

First  Such  an  assault  as  may  reasonably  cause 
the  apprehension  that  death  will  otherwise  be  the 
consequence  of  such  assault ; 

Secondly.  Such  an  assault  as  may  reasonably  cause 
the  apprehension  that  grievous  hurt  will  otherwise  be 
the  consequence  of  such  assault ; 

Thirdly.  An  assault  with  the  intention  of  com- 
mitting rape ; 

Fowrthly.  An  assault  with  the  intention  of  grati- 
fying unnatural  lust ; 


78  CHAPTER  IV. 

Fifthly.  An  assault  with  the  intention  of  kidnap- 
ping or  ahdueting ; 

Sixthly.  An  assault  with  the  intention  of  wrong- 
fully confining  a  person,  under  circumstances  which 
may  reasonably  cause  him  to  apprehend  that  he  will 
be  unable  to  have  recoiurse  to  the  public  authorities 
for  his  release. 

Certain  aggravated  assaults  which  are  here  enumerated  justify 
the  exercise  of  the  right  of  private  defence  to  the  extent  of  caus- 
ing death  (if  this  be  necessary).  The  reference  to  the  re- 
strictions in  the  preceding  Section  should  probably  be  under- 
stood to  apply  to  the  restrictions  therein  mentioned  exclusive  of 
those  in  the  first  and  second  clauses^  as  to  which  this  reference 
is  inapplicable. 

101.  If  the  offence  be  not  of  any  of  the  descrip- 

tions enumerated  in  the  last 

f  When  such. ri^t  extends  to  •••  n      i*  jjt  •    i_j. 

causing  any  harm  other  than      prCCedmg     SCCtlOU,     the     Tight 

^  of  private  defence  of  the  body 

does  not  extend  to  the  voluntary  causing  of  death  to 
the  assailant,  but  does  extend,  under  the  restrictions 
mentioned  in  Section  99,  to  the  voluntary  causing  to 
the  assailant  of  any  harm  other  than  death. 

102.  The  right   of  private  defence  of  the  body 

commences  as  soon  as  a  rea- 

Oommenoement  and  conti-  -i  i  i  .  !•  ■, 

nuance  of  the  right  of  private     sonabic  apprehcnsion  oi  danTOr 

defence  of  the  body.  j.       j.i        v      i  •  /»  ° 

to  the  body  arises  from  an 
attempt  or  threat  to  commit  the  offence,  though  the 
offence  may  not  have  been  committed ;  and  it  con- 
tinues as  long  as  such  apprehension  of  danger  to  the 
body  continues. 

There  must  be  an  attempt  or  threat,  and  consequent  thereon 
an  apprehension  of  danger ;  but  it  is  not  a  mere  idle  threat,  or 
every  apprehension  of  a  rash  or  timid  mind,  that  will  justify 
the  exercise  of  the  right.  Reasonable  ground  for  the  apprehen.. 
sion  is  requisite. 

Suppose  the  threat  to  proceed  from  a  woman  or  child,  and  to 


GEKEEAL  EXCEPTIONS.  79 

be  addressed  to  a  strong  man :  in  such  a  case  there  conld  hardly 
be  a  reasonable  apprehension. 

Present  and  imminent  danger  seems  to  be  meant.  Bat  if  a 
man  is  preparing  himself^  as  by  seizing  a  dangeroas  weapon  in 
such  a  way  that  he  manifestly  intends  immediate  violence^  this 
seems  sufficient  justification  of  the  exercise  of  the  right ;  for 
his  conduct  amounts  to  a  threat^  and  the  other  has  reason  to 
consider  the  danger  to  be  imminent. 

When  the  danger  is  not  present^  but  may  be  avoided^  can  a 
man  who  voluntarily  seeks  it,  be  said  to  have  a  reasonable 
apprehension  of  such  danger  ?  As  if  A^  knowing  that  B  is  waiting 
to  attack  and  rob  him^  proceeds  on  his  road  with  the  deliberate 
purpose  of  resisting  the  attack  with  all  necessary  force^  and  does 
so^  and  thereby  causes  B's  death.  A  appears  to  be  entitled  to 
the  benefit  of  the  exception^  for  he  had  a  reasonable  apprehension 
of  danger  when  B  attacked  him^  notwithstanding  the  attack 
was  not  unforeseen. 

103.    The  right  of  private  defence  of  property  ex- 

tends,  under  the  restrictions 
defence  <>'j£2S®'*^  extends  mentioned  in  Section  99,  to 
to  cMuins  ^j^^  voluntary  causing  of  death 

or  of  any  other  harm  to  the  wrong  doer,  if  the  oflfence, 
the  committing  of  which,  or  the  attempting  to  com- 
mit which,  occasions  the  exercise  of  the  right,  be 
an  offence  of  any  of  the  descriptions  hereinafter  enu- 
merated, namely : — 

Firstly.     Robbery ; 

Secondly.    House-breaking  by  night ; 

Thirdly.  Mischief  by  fire  committed  on  any  build- 
ing, tent,  or  vessel,  which  building,  tent,  or  vessel  is 
used  as  a  human  dwelling,  or  as  a  place  for  the  cus- 
tody of  property ; 

Fourthly.  Theft,  mischief,  or  house  trespass,  un- 
der such  circumstances  as  may  reasonably  cause  ap- 
prehension that  death  or  grievous  hurt  will  be  the 
consequencei  if  such  right  of  private  defence  is  not 
exercised. 


80  CHAPTER  IV. 

104.  If  the  offence,  the  committing  of  which,  or 

the    attempting    to    conmdt 

When  luoh  right  extends  to  -■  •   i.  •  xi. 

causing  any  harm  other  than      WlllCll    OCCaSlOnS    tbe    exerClSO 

^®**^  of  the  right  of  private  defence, 

be  theft,  mischief,  or  criminal  trespass,  not  of  any  of 
the  descriptions  enumerated  in  the  last  preceding 
Section,  that  right  does  not  extend  to  the  voluntary 
causing  of  death,  but  does  extend,  subject  to  the  re- 
strictions mentioned  in  Section  99,  to  the  voluntary 
causing  to  the  wrong  doer  of  any  harm  other  than 
death. 

105.  First.  The  right  of  private  defence  of  property 

^     ^      ^,     commences  when  a  reasonable 

Commencement  and  oonti-  .  .  ^    .  .      ii 

nuance  of  the  right  of  private    apprchcnsion  of  dan&:er  to  the 

defence  of  property.  ^^        i  ^ 

property  commences. 

Second.  The  right  of  private  defence  of  property 
against  theft  continues  till  the  offender  has  effected  his 
retreat  with  the  property,  or  the  assistance  of  the 
public  authorities  is  obtained,  or  the  property  has 
been  recovered. 

Third.  The  right  of  private  defence  of  property 
against  robbery  continues  as  long  as  the  offender  causes 
or  attempts  to  cause  to  any  person  death  or  hurt  or 
wrongful  restraint,  or  as  long  as  the  fear  of  instant 
death,  or  of  instant  hurt,  or  of  instant  personal  re- 
straint continues. 

Fourth.  The  right  of  private  defence  of  property 
against  criminal  trespass  or  mischief  continues  as  long 
as  the  offender  continues  in  the  commission  of  criminsu 
trespass  or  mischief. 

Fifth.  The  right  of  private  defence  of  property 
against  house-breaking  by  night,  continues  as  long 
as  the  house-trespass  which  has  been  begun  by  such 
housebreaking  continues. 

A  recaptare  of  the  plundered  property,  while  it  is  in  course 
of  being  carried  away  is  authorized,  for  the  taking  and  retaking 
is  one  transaction.  But  when  the  offence  has  been  committed 
and  the  property  removed,  a  recapture  after  an  interval  of  time 
by  the  owner  or  by  other  persons  on  his  behalf,  however  justi- 


GliNfiRAL  EXCEFflOKS.  SI 

fiable^  cannot  be  deemed  an  exerdsfe  of  the  right  of  defence  of 
property,  the  recoveiy  which  the  Section  contemplates  seems 
to  be  a  recovery  either  immediate  or  made  before  the  offender 
has  reached  hie  final  retreat*  As  where  stolen  cattle  are  tracked 
nntil  ultimately  overtaken  in  their  retreat  and  recaptured. 

Suppose  Z  commits  theft  of  A' a  horse,  and  rides  away  with 
it.  Here  A  has  a  right  of  private  defence,  which  lasts  till 
either  Z  can  effect  his  retreat  with  the  property,  or  till  A  can  re- 
cover his  horse.  A  pursues  Z  and,  not  being  able  to  overtake 
him,  shoots  him  dead«  The  right  of  private  defence,  which 
in  no  case  extends  to  the  inflicting  of  more  harm  than  is  ne- 
cessary, would  perhaps  not  justify  the  infliction  of  death  in 
such  a  case. 

In  cases  where  acts  of  violence  are  done  in  the  alleged  exer* 
cise  of  the  right  of  private  defence  of  property  against  criminal 
trespass  or  mischief,  it  will  be  necessary  carefully  to  attend  to 
the  restrictions  which  the  law  imposes  on  this  right*  Suppose 
such  a  case  as  the  following :  A  and  B  have  a  dispute  respect- 
ing land  in  the  possession  of  B.  A,  in  the  exercise  of  some 
right  or  supposed  right,  threatens  to  plough  up  the  crop  which 
has  been  sown  and  to  use  the  land  for  some  other  purpose ; 
and  he  assembles  men  to  execute  forcibly  this  purpose.  B, 
knowing  of  this,  collects  persons  in  defence  of  his  property. 
If  any  violence  ensues  under  these  circumstances,  no  question 
can  arise  as  to  the  right  of  self-defence,  unless  the  person  who 
seeks  to  justify  his  acts  under  this  exception,  can  show  that  he 
applied  for  the  protection  of  the  law  and  did  what  in  him  lay 
to  procure  its  intervention. 

106.  If,  in  the  exercise  of  the  right  of  private  de- 
Right  of  private  defence  feiice  ogaiiist  an  assault  which 
tS^?"u*^iIk*S  kSJm^to^'SS  reasonably  causes  the  appre- 
famocent  person.  hension  of  death,  the  defender 

be  so  situated  that  he  cannot  effectually  exercise  that 
right  without  risk  of  harm  to  an  innocent  person,  his 
right  of  private  defence  extends  to  the  running  of 
that  risk* 

M 


82  CHAPTER  V* 

Illustration, 
A  is  attacked  by  a  mob  who  attempt  to  murder  him.  He  can- 
not effectually  exercise  his  right  of  private  defence  without  firing  on 
the  mob,  and  he  cannot  fire  without  risk  of  harming  young  child- 
ren who  are  mingled  with  the  mob.  A  commits  no  offence  if  by  bo 
firing  he  harms  any  of  the  children. 

A  man  must  not  escape  death  by  designedly  causing  the 
death  of  an  innocent  person^  but  in  the  case  supposed  he  is 
excused  for  causing  an  innocent  person  to  run  the  risk  of  death* 


Chapter  V. 
OF  ABETMENT. 


When  an  offence  is  committed  and  several  persons  take  part 
in  the  comtnission  of  it,  each  person  may  contribute  in  a  man- 
ner and  degree  different  from  the  others  to  the  doing  of  the 
criminal  act. 

The  act  may  be  done  by  the  hands  of  one  person  while 
another  is  present,  or  is  close  at  hand  ready  to  afford  help ; 
or  the  actual  doer  may  be  a  guilty  agent  acting  under  the 
orders  of  an  absent  person  :  and  besides  these  participators, 
there  may  be  other  persons  who  contribute  less  directly  to  the 
commission  of  the  offence  by  advice,  persuasion,  incitement  or 
aid.  It  is  proper  to  mark  the  nature  and  degree  of  participa- 
tion which  is  essentifbl  to  criminal  liability,  but  it  will  be  seen 
that  the  several  gradations  of  action  above  referred  to,  are  not 
always  treated  as  denoting  necessarily  different  measures  of 
guilt  with  a  view  to  distinctions  in  respect  of  punishment. 

The  law  concerning  principal  offenders  and  accessaries  or 
abettors  is  contained  in  Sections  34 — 38  of  Chapter  II.,  and 
in  the  present  Chapter.  The  several  definitions  of  offences 
throughout  the  Code,  construed  with  reference  to  these  pro- 
visions, extend  the  operation  of  the  Code  to  all  who  commit 


ABETMENT.  83 

or  abet  the  commission  of  an  offence,  or  who  contribate  to  it  in 
any  degree  which  a  penal  law  can  notice. 

We  have  seen  that  if  several  persons,  combining  both  in 
intent  and  act,  commit  an  offence  jointly,  each  is  gnilty,  as  if  he 
had  done  the  whole  alone ;  and  that  so  it  is,  if  each  has  his 
several  part  to  do,  all  contributing  to  one  result.  When  all 
thus  combine,  each  does  the  act  so  far  as  his  own  part  extends, 
and,  as  to  the  residue,  may  be  regarded  as  procuring  it  to  be 
done  by  means  of  guilty  agents  :  all  the  parties  so  concerned, 
stand  in  the  mutual  relation  of  principals  and  agents. 

The  present  Chapter  treats  of  criminal  agency  of  a  less  direct 
and  immediate  kind  j  the  agent  being  urged  forward  by  a  per- 
son who  will  not  himself  act,  but  who  procures  or  instigates 
another  to  put  in  execution  his  criminal  intention. 

The  offence  of  abetment  must  mainly  depend  on  the  guilty 
knowledge  or  intention  of  the  abettor.  The  knowledge  or  in* 
tention  of  the  person  he  employs  to  act  for  him,  will  not  affect  or 
alter  the  abettor's  guilt,  although  the  acts  of  that  person  may 
have  an  important  bearing  in  determining  it.  The  measure  of 
punishment  which  the  Code  awards  to  abettors  depends  on  the 
effect  of  the  abetment;  a  distinction  being  made  between 
cases  in  which  the  abetment  is  successful,  and  those  in  which 
the  effect  intended  is  not  accomplished.  If  the  act  abetted  is ' 
done,  the  abettor  is  punished  as  if  he  had  himself  committed 
the  offence.  If  the  act  abetted  is  not  done,  he  is  punished  less 
severely,  but  regard  is  had  to  the  result  of  his  abetment ;  any 
hurt  which  may  be  caused  being  deemed  an  aggravation  of  his 
offence.  But  no  distinction  seems  to  be  made,  as  regards  the 
abettor's  punishment,  between  cases  in  which  the  person  abet- 
ted involuntarily  fails,  or  is  prevented  from  carrying  his  inten- 
tion into  execution,  and  those  in  which  be  resists  altogether 
the  solicitations  of  the  abettor. 

Again,  the  person  abetted  may  be  guilty  of  a  criminal  act, 
and  his  abettor  may  in  no  way  be  answerable  for  it,  because 
the  act  done  goes  beyond  or  is  quite  distinct  from  the  act 
M  2 


84  CHAPTEB  V, 

intended  by  the  abettor :  he  muat  answer  for  any  probable 
consequence  of  his  abetment^  notwithstanding  that  the  act  or 
resnit  may  not  be  precisely  what  he  intended^  bat  he  is  not 
further  responsible.  The  question  will  be  this^  Is  the  aot  done; 
although  not  precisely  the  act  intended  to  be  done^  yet  snbstan* 
tially  the  same^  or  a  probable  result  of  that  act  ?  If  ao^  the 
abettor  must  answer  for  it. 

The  sort  of  conduct  which  constitutes  abetment  is  explained^ 
but  no  rule  is  or  could  be  laid  down  on  the  subject  of  the  degree 
of  incitement  or  the  force  of  the  persuasion  usedj  which  will 
si^fl^ce  to  make  a  person  an  abettor. 

The  prorisions  of  tbis^  as  of  all  succeeding  Chapters^  must  be 
read  with  the  foregoing  Chapters  of  Qeneral  Explanations  and 
General  Exceptions.  Construed  with  reference  to  the  latter 
Ch^pter^  it  is  clear  that  those  who  cannot  commit  offences  can* 
not  be  abettors  of  offences :  therefore  infimts^  insane  pers<ma 
and  others  excepted  from  criminal  liability  cannot  be  abettorSf 

The  first  Section  of  this  Chapter  explains  what  acts  or  conduct 
of  a  person  shall  be  deemed  to  constitute  him  an  abettor  of  the 
doing  of  ^  thing  whether  such  thing  is  in  him  an  offence  or 
ifkotf  The  thing  done  may  be  criminal  and  yet  no  offence  (in  thQ 
language  of  the  Code)  in  the  actual  doer>  because^  being  an 
infant  or  an  insane  person  &o.^  no  guilt  can  be  imputed  to  him* 
To  distinguish  between  things  done  by  such  persons  and  things 
done  by  guilty  agents^  this  form  of  expression  is  used. 

4-betment  is  1>  by  instigation ;  2^  by  conspiracy ;  3^  by  aid, 

107.    A  perspn  abets  the  doing  of  a  thing,  who, 
Abetment  of  a  thing.         Fivst, — Instigates  any  person  to 
do  that  thing. 

Explanation  1, — A  person  who,  by  wilful  misre-* 
presentation,  or  by  wilful  concealment  of  a  material 
fact  which  he  is  bound  to  disclose,  voluixtarily  eaus<« 
es  or  procures,  or  attempts  to  cause  or  procure,  a 
thing  to  be  done,  is  said  to  instigate  the  doing  of 
that  thing, 


A,  a  paWe  officer,  is  ftnthoriBed  by  a  warrant  from  a  Court  of  Jair 
tiee  to  apprehend  Z.  B,  knowing  that  fact  and  also  that  C  is  not 
Z,  wilfully  represents  to  A  that  C  is  Z.  and  thereby  intentionally 
causes  A  to  apprehend  C.  Here  B  abets  by  instigation  theappreheD- 
^n  of  C4 

The  fllustration  is  an  instance  of  instigation  by*  willful  mis- 
representation. Instigation  by  wilful  concealnient  is  where 
some  duty  exists  which  obliges  a  person  to  disclose  a  fact.  Not 
every  trivial  misrepresentation  or  concealment  will  oonsifcitute 
such  an  instigation ;  it  must  concern  a  material  fact^  and  the 
instigator  must  thereby  intend  to  cause,  or  know  it  to  be  likely 
that  he  will  cause,  the  doing  of  the  thing.  (See  Section  8^. 
Explanation  of  "  Voluntarily.") 

Instigation  may  be  by  advising,  commatiding,  hiring  or 
otherwise  inciting  or  encouraging  a  person  to  aot.  Wordla 
which  amount  merely  to  a  permission  may  perhaps  amount  to 
an  instigation,  but  this  will  depend  on  the  position  of  the 
speaker  and  the  occasion  on  which  they  are  spoken.  As  to 
mere  omissions,  such  as  an  omission  by  a  private  person  to 
give  the  police  information  respecting  an  offence,  they  cannot 
amount  to  instigation  by  concealment  or  otherwise,  unless 
Ihey  are  illegal, — that  is,  unless  the  law  has  imposed  the 
duty  of  giving  such  information  on  the  persons  charged  with 
the  omission. 

Or  who^ 

Secondly/. — ^Engages  with  one  or  more  other  person 
or  persons  in  any  conspiracy  for  the  doing  of  that 
thing,  if  an  act  or  illegal  omission  takes  place  in  pur- 
suance of  that  conspiracy,  and  in  order  to  the  doing 
of  that  thing : 

Two  or  more  persons  may  be  said  to  engage  in  a  conspiracy 
for  the  doing  of  a  thing  when  they  combine  and  agree  to  do  it 
or  to  caoBe  it  to  be  done ;  but  this  combination  alone  will  not 
make  th^n  abettors^  tihough  they  may  have  discussed  planS| 


86  CHAPTEE  V. 

adopted  resolations  and  interchanged  promises  of  fidelity^  unless 
an  act  in  pursuance  of  the  conspiracy  has  taken  place. 

Suppose  A  and  B  conspire  to  poison  Z.  A,  in  pursuance  of 
this  conspiracy  and  in  order  to  the  poisoning  of  Z^  causes  C^ 
an  innocent  person,  to  buy  poison  and  to  deliver  it  to  B  for 
the  purpose.     Here  A  and  B  have  abetted  the  death  of  Z* 

The  nature  of  abetment  by  conspiracy  requires  that  more  than 
one  person  should  be  concerned  in  it.  The  person  who  does  the 
thing  may  be  a  person  distinct  from  any  of  those  engaged  in 
the  conspiracy,  for  the  intervention  of  a  third  person  does  not 
make  them  the  less  abettors.  See  Explanation  5  of  Section  108 
and  the  Illustrations,  &c. 

Or  who, 

2%irdZy.— Intentionally  aids,  by  any  act  or  illegal 
omission,  the  doing  of  that  thing. 

Explcmation2. — ^Whoever,  either  prior  to  or  at  the 
time  of  the  commission  of  an  act,  does  any  thing  in 
order  to  facilitate  the  commission  of  that  act,  and 
thereby  facilitates  the  commission  thereof,  is  said  to 
aid  the  doing  of  that  act.    . 

Concealment,  when  it  is  wilful  and  relates  to  a  fact  which  a 
person  is  bound  to  disclose,  constitutes  abetment  by  aid,  the 
aid  being  given  by  this  illegal  omission, 

108.  A  person  abets  an  ofltence  who  abets  either 
Abettor.  the  commission  of  an  oflfence, 

or  the  commission  of  an  act  which  would  be  an  of- 
fence, if  committed  by  a  person  capable  by  law  of 
committing  an  offence  with  the  same  intention  or 
knowledge  as  that  of  the  abettor. 

Explanation  1. — The  abetment  of  the  illegal  omis- 
sions of  an  act  may  amount  to  an  offence,  although 
the  ahettor  may  not  himself  be  bound  to  do  that  act. 

If  a  public  servant  is  guilty  of  an  illegal  omission  of  duty 
made  punishable  by  the  Code,  and  a  private  person  instigates 
him,  he  abets  the  oflfencQ  of  which  such  public  servant  is  guilty,^. 


ABETMENT.  87 

althoQgli  tho  abettor^  being  a  private  person^  could  not  himself 
have  been  guilty  of  that  oflfence. 

Explanation  2. — ^To  constitute  the  offence  of  abet- 
ment»  it  is  not  necessary  that  the  act  abetted  should 
be  committed,  or  that  the  efltect  requisite  to  consti- 
tute the  oflfence  should  be  caused- 

lllustrations, 

(a)  A.  instigates  B  to  murder  C.  B  refuses  to  do  so,  A  is  guilty 
of  abetting  B  to  commit  murder. 

(ft)  A  instigates  B  to  murder  D.  B  in  pursuance  of  the  instiga- 
tion stabs  D.  D  recovers  from  the  wound.  A  is  guilty  of  instiga- 
ting B  to  commit  murder. 

In  the  punishment  of  abetment  regard  is  had  to  its  effect  : 
bat  the  offence  is  complete  notwithstanding  that  the  person 
abetted  refnses  to  do  the  thing,  or  fails  involuntarily  in  doing 
it^  or  does  it  and  the  expected  result  does  not  follow. 

Explanation  S.— It  is  not  necessary  that  the  person 
abetted  should  be  capable  by  law  of  committing  an 
oflfence,  or  that  he  should  have  the  same  guilty  inten- 
tion or  knowledge  as  that  of  the  abettor,  or  any 
guilty  intention  or  knowledge. 

Illustrations. 

(a)  A,  with  a  guilty  intention,  abets  a  child  or  a  lunatic  to  com- 
mit an  act  which  would  he  an  offence,  if  committed  hy  a  person 
capable  by  law  of  committing  an  offence,  and  having  the  same  inten- 
tion as  A.  Here,  A,  whether  the  act  be  committed  or  not,  is  guilty 
of  abetting  an  offence. 

(h)  A,  with  the  intention  of  murdering  Z,  instigates  B,  a  child 
under  seven  years  of  age,  to  do  an  act  which  causes  Z's  death.  B, 
in  consequeuee  of  the  abetment,  does  the  act,  and  thereby  causes  Z's 
death.  Here,  though  B  was  not  capable  by  law  of  committing  an 
offence,  A  is  liable  to  be  punished  in  the  same  manner  as  if  B  had 
been  capable  by  law  of  committing  an  offence,  and  had  committed 
murder,  and  he  is  therefore  subject  to  the  punishment  of  death. 

{c)  A  instigates  B  to  set  fire  to  a  dwelling-house.  B,  in  conse- 
quence of  the  unsoundness  of  his  mind,  being  incapable  of  knowing 
the  nature  of  the  act,  or  that  he  is  doing  what  is  wrong  or  contrary 
to  law,  sets  fire  to  the  house  in  consequence  of  A's  instigation.  B 
has  committed  no  offence,  but  A  is  guilty  of  abetting  the  offence  of 
setting  fire  to  a  dwelling-house,  and  is  liable  to  the  punishment  pro- 
vided for  that  offence. 


d8  CfiAFPER  V. 

(d)  A,  ififcendiBg  to  cause  a  theft  to  be  4iommitted,  instigates  B 
to  take  property  belonging  to  Z  out  of  Z's  possession.  A  induces  B 
to  believe  that  the  property  belongs  to  A.  B  takes  the  property  out 
of  Z'a  possession,  m  good  -fo-ith,  believing  it  to  be  A's  property.  B, 
acting  under  ^is  misconception,  does  not  take  dishonestly  and  there- 
fore does  not  commit  theft.  But  A  is  guilty  of  abetting  theft,  and 
is  liable  to  i^e  same  punishment  as  if  B  had  committed  th^ft. 

Explanation  4. — The  abetment  of  an  offence  being 
an  offence,  the  abetment  of  such  an  abetment  is  also 
an  offenee. 

Illustration, 

A  instigates  B  to  instigate  C  to  murder  Z.  B  accordingly  insti- 
gates C  to  murder  Z,  and  C  commits  that  offence  in  consequence  of  B'b 
instigation.  B  is  liable  to  be  punished  for  his  offenee  with  the  punish- 
ment for  murder,  and  as  A  instigated  B  to  commit  the  offence,  A  is 
also  liable  to  the  same  punishment. 

It  appears  from  this,  that  a  person  may  make  himself  an 
abettor  by  the  intervention  of  a  third  person  without  any  direct 
communication  between  himself  and  the  person  employed  to 
do  the  thing.  x 

Explanation  5. — It  is  not  necessary  to  the  commis- 
sion of  the  offence  of  abetment  by  conspiracy  that  the 
abettor  should  concert  the  offence  with  the  person 
who  commits  it.  It  is  sufficient  if  he  engage  in  the 
conspiracy  in  pursuance  of  which  the  offence  is  com- 
mitted. 

UltMtration^ 

A  concerts  with  B  a  plan  for  poisoning  Z.  It  is  agreed  that  A 
shall  administer  the  poison.  B  then  explains  the  plan  to  C,  mention- 
ing that  a  third  person  is  to  administer  the  poison,  but  without  men- 
tioning A's  name.  C  agrees  to  procure  the  poison  and  procures  and 
delivers'  it  to  B  for  the  purpose  of  its  being  used  in  the  manner  ex- 
plained. A  administers  the  poison.  Z  dies  in  consequence.  Here, 
though  A  and  C  have  not  conspired  together,  yet  C  has  been  engaged 
in  the  conspiracy  in  pursuance  of  which  Z  has  been  murdered.  C  has 
therefore  committed  the  offence  defined  in  this  Section  and  is  liable 
to  the  punisliment  for  murder. 

109.    Whoever  abets  any  offence  shall,  if  the  act 

abetted  is  committed  in  con- 

Funuihmont  of  abetment  if  i»  xi.       i.   x  j.  j 

the  act  abetted  is  committed     sequcnce  Oi  the  aDctment,  and 

in  consequenee  and  where  no  -*-  •    •         •  ji     i 

exprew  Moviiioa  i»  made  tor    no  cxprcss  pf  0 vision  IS  made  by 
itapu  s  ment.  ^j^.^  Codc  for  the  punishment 


ABETMENT.  89 

of  sucli  abetment,  be  punished  with  the  punishment 
provided  for  the  ofltence. 

Explanation. — ^An  act  or  oflfence  is  said  to  be  com- 
mitted in  consequence  of  abetment,  when  it  is  com- 
mitted in  consequence  of  the  instigation,  or  in  pur- 
suance of  the  conspiracy,  or  with  the  aid  which 
constitutes  the  abetment. 

Illustrations. 

{a)  A  offers  a  bribe  to  B,  a  public  servant,  as  a  reward  for  show- 
ing A  aome  favour  in  the  exercise  of  B*g  official  functions.  B  accepts 
the  bribe.     A  has  abetted  the  offence  defined  in  Section  161. 

(b)  A  instigates  B  to  give  false  evidence.  B,  in  consequence  of 
the  instigation,  commits  that  offence.  A  is  guilty  of  abetting  that 
offence,  and  is  liable  to  the  same  punishment  as  B. 

(tf)  A  and  B  conspire  to  poison  Z.  A,  in  pur^^uance  of  the  con- 
spiracy, procur<^  the  poison  and  delivers  it  to  B  in  order  that  he  may 
administer  it  to  Z.  B,  in  pursuance  of  the  conspiracy,  administers  the 
poison  to  Z  in  A*s  absence  and  thereby  causes  Z*8  death.  Here 
B  is  guilty  of  murder.  A  is  guilty  of  abetting  that  offence  by  con- 
spiracy, and  is  liable  to  the  punishment  for  murder. 

The  abettor  is  liable  to  any  panishment  which  may  be 
inflicted  on  the  principal  offender^  if  the  act  of  the  latter  is 
^'committed  in  conseqaence  of  the  abetment."  Suppose  a  full 
interruption  of  the  original  design,  which  is  laid  aside  and 
abandoned :  afterwards,  acting  from  other  motives,  or  on  other 
and  new  provocation  or  temptation,  the  principal  offender 
resumes  his  former  purpose  and  commits  the  offence.  The 
abettor  of  the  original  design  is  not  liable  to  the  full  punish- 
ment provided  for  this  offence. 

This  explanation  is  not  to  be  understood  to  require  substan-r 
tive  proof  that  the  offence  is  a  consequence  of  the  instigation, 
aid,  &c.,  which  precedes  it.  The  instigation  or  other  mode  of 
abetment  being  shewn  and  also  the  criminal  object  intended  to 
be  thereby  promoted,  no  positive  proof  seems  to  he  required 
that  the  offence  committed  is  a  consequence  of  the  instigation. 
Nor  would  it,  under  such  circumstances,  be  any  defence  to  shew 
that  the  offence  would  have  been  committed  although  the  in< 
BtigatioD,  &c.,  had  never  taken  place. 
N 


S?^thrd^'^?felon    does  the  act  With  a  different 
from  that  ofthe  abettor.  intention  or  knowledge  from 


90  CHAPTER  V. 

'*  And  DO  express  provision/'  &c.  In  several  instances  through* 
out  the  Code,  the  punishment  of  abetment  is  fi^ed,  not  according 
to  the  principles  on  which  the  ordinary  law  of  abetment  is 
framed,  but  bjr  e^ppress  provision.  (See  Sections  121,  122,  131, 
132,  &c.) 

The  proof  in  support  of  a  charge  of  abetment  under  this 
Section,  must  be  proof  of  some  of  those  acts  or  matters  which 
have  been  explained  by  Section  107  to  constitute  abetment, 
and  of  the  object  thereby  contemplated ;  and  proof  that  the 
thing  abetted  has  been  done.  Whfbt  is  done  must  appear  to 
be  an  offence,  that  is,  a  thing  made  punishable  by  this  Code. 

110.  Whoever  ahets  the  commission  of  an  offence 
puniBhinentof  abetment  if    shall,    if   the  pcrson  abetted 

jhe  person  abetted  does  the 
act  with  a  difEDrent  intention 
'      oftheabe' 

that  of  the  abettor,  be  punished  with  the  punishment 
provided  for  the  offence  which  would  have  been  com- 
mitted if  the  apt  had  been  done  with  the  intention 
or  knowledge  of  the  abettor  and  with  no  other. 

111,  When  an  act  is  abetted  and  a  different  act  is 

done,  the  abettor  is  liable  for 

liiability  of  abettor  when      j  v  i    j  •     j.i. 

one  act  is  abetted  and  a  d&:    the  act  douc,  lu  the  samc  man- 

ferentactisdbnp.  ^^^    ^^    ^^    ^^^    ^^^^    ^^^^^ 

as  if  ho  had  directly  abetted  it;  provided  the  act 
Proviso.  done  was  a  probable  conse- 

quence of  the  abetment,  and  was  committed  under 
the  influence  of  the  instigation,  or  with  the  aid,  or 
in  pursuance  of  the  conspiracy  which  oonstituted  the 
ptbetment, 

Jllustraiions. 

(a)  A  ipstigates  a  child  to  put  poison  into  the  food  of  Z  and 
gives  hiiR  poison  for  that  purpose.  The  child,  in  consequence  of  the 
instigation,  by  mistajce  puts  the  poison  iqto  the  food  of  Y,  which  is 
by  the  side  of  that  of  Z.  Here,  if  the  chijd  was  acting  under  the 
influence  of  A*8  instigation  and  the  act  done  was  under  the  circum* 
stances  ^  prohable  qonse(}uence  of  the  abetment,  A  is  liable  in  the 
9ame  manner  and  tp  the  sam^  extent  as  if  he  had  instigated  the 
child  to  put  thp  poison  into  the  food  of  Y. 

(b)  A  instigates  B  to  bum  Z's  house.  B  sets  fire  to  the  house 
Hnd  at  the  ss^me  time  commits  theft  of  property  there.    A,  though 


ABfiTMENT.  91 

gailiy  of  abetting  the  burning  of  the  house,  is  not  guilty  of  abet* 
ting  the  theft ;  for  the  theft  was  a  distinct  act  and  not  a  probable 
consequence  of  the  burning. 

{c)  A  instigates  B  and  C  to  break  into  an  inhabited  house  at 
midnight  for  the  purpose  of  robbery,  and  provides  them  with  arms 
for  that  purpose.  B  and  0  break  into  the  house,  and  being  resisted 
by  Z,  one  of  the  inmates,  murder  Z.  Here  if  that  murder  was  the 
probable  consequence  of  the  abetment,  A  is  liable  to  the  punishment 
provided  for  murder. 

It  is  sufficient  if  the  act  done  was  a  probable  consequence 
of  the  abetment.  It  is  not^  it  seems^  necessary  that  the  abettor 
should  know  it  to  be  a  probable  consequence. 

112.  If  the  act  for  which  the  abettor  is  liable  un* 
AK^^    u     «  1.1   *  der  the  last  preceding  Section 

▲bettor  when  liabl*  to  on-      .  -xj.    j    •  jj«j.*  ^ 

^l^e  mmiahmOT^fop  aot    is  Committed  m  addition  to 
*^    ^'  ^  the  act  abetted  and  constitutes 

a  distinct  oflFence,  the  abettor  is  liable  to  punish- 
ment  for  each  of  the  offences. 

llluttraiion, 

A  instigates  B  to  resist  by  force  a  distress  made  by  a  public  ser* 
Tant.  B,  in  consequence,  resists  that  distress.  In  offering  the 
resistance,  B  Yoluntarily  causes  grievous  hurt  to  the  officer  executing 
the  distress.  As  B  has  committed  both  the  offence  of  resisting  the 
distress  and  the  offence  of  voluntarily  causing  grievous  hurt,  B  is 
liable  to  punishment  for  both  these  offences ;  and  if  A  knew  that 
B  was  likely  voluntarily  to  cause  grievous  hurt  in  resisting  the 
distress,  A  will  also  be  liable  to  punishment  for  each  of  the  offences. 

113.  When  an  act  is  abetted  with  the  intention 

on  the  part  of  the  abettor  of 

IiiebiUty  of  abettor  tat  9M.  .      ^  _!.•   ,,i  ^rc     j, 

'  effect  caused  different  from  caUSmST  a  particular  etiect, 
tl^int^utedbytlu^abettor.  ^^^  ^^  ^^  ^^^  which  the  abet- 
tor is  liable  in  consequence  of  the  abetment,  causes  a 
different  effect  from  that  intended  by  the  abettor,  the 
abettor  is  liable  for  the  effect  caused,  in  the  same  man- 
ner and  to  the  same  extent  as  if  he  had  abetted  the  act 
with  the  intention  of  causing  that  effect ;  provided  he 
knew  that  the  act  abetted  was  likely  to  cause  that  effect. 

Illustration, 

A  instigates  B  to  cause  grievous  hurt  to  Z.  B,  in  consequence  of 
the  instigation,  causes  grievous  hurt  to  Z.  Z  dies  in  oonsequeace, 

N    2 


&2  CHAPTER  V^ 

Here  if  A  knew  that  the  grievous  hurt  abetted  was  likely  to  cause 
death,  A  is  liable  to  be  punished  with  the  punishment  provided  for 
murder. 

A  person  would  not  be  liable  for  an  unexpected  eflTect  or  for 
an  eflTect  which  could  not  have  been  foreseen  to  be  probable. 
Suppose  the  instigation  was  to  inflict  some  small  hurt  on  Z, 
not  calculated  of  itself  to  endanger  his  life,  and  Z  by  intemper* 
ance^  or  neglect,  or  bad  treatment,  dies,  A  would  not  be 
ftnswerable  for  his  death. 

The  illustrations  shew  clearly  the  distinct  operation  of  this 
Section  and  Section  111. 

114.  Whenever  any  person,  who,  if  absent  would 
Abettor  present  when  of-    ^^  liable  to  be  punished  as  an 

fence  iB  committed.  abcttor,  is  present  when  the 

?iet  or  offence  for  which  he  would  be  punishable  in 
consequence  of  his  abetment  is  committed,  he  shall  he 
deemed  to  have  committed  such  act  or  offence. 

By  virtue  of  this  provision  such  an  abettor  may  on  his  trial, 
be  charged  with  the  offence  as  if  he  had  himself  committed  it. 
Suppose  several  persons  are  present  and  concerned  in  the 
commission  of  an  offence,  but  it  is  uncertain  whicli  of  them 
actually  committed  it,  and  which  aided  the  commission ;  each 
may  be  charged  as  a  principal  offender.  * 

115.  Whoever  abets  the  commission  of  an  oflfence 

,^  ,        ^,         ^  punishablewith death  or  trans- 
Abetment  of  an  offence  pu-  *■     _i    J..  i.  Ti.  1.     n        •!• 
nishable  With  death  or  trans-  portatlOU     for      Mc,     shall,     if 
portatlon  for  life  if  the  offence  t-t      .       r^*             i              .  -f.     ^  • 

be  not  committed  in  ponee-    tiiat  ottence  bc  uot  Committed 

4iuenoe  of  the  abetment.  •  f     .^  t     . 

m  consequence  of  the  abet- 
ment, and  no  express  provision  is  made  by  this  Code 
for  the  punishment  of  such  abetment,  be  punished 
with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  seven  years,  and  shall  also  be 
liable  to  fine ;  and  if  any  act  for  which  the  abettor 

is  liable  in  consequence  of  the 

If  an  act  which  oanses  harm      ^-i     , .  ,         u-   i 

be  done  in  consequence  of  abetment,  and  WlIlCU  CaUSCS 
the  abetment.  j^^^  ^^  ^^^  pCrSOn,  is  doUC,  the 

abettor  shall  he  liable  to  imprisonment  of  either  de- 


ABETMENT.  93 

scription  for  a  term  which  may  extend  to  fourteen 
years,  and  shall  also  be  liable  to  fine. 

Illustration, 

A  instigates  B  to  murder  Z.  The  offence  is  not  committed.  If 
B  had  murdered  Z  he  would  have  been  subject  to  the  punishment  of 
death  ov  transportation  for  life.  Therefore  A  is  liable  to  imprison- 
ment for  a  term  which  may  extend  to  seven  years  and  also  to  fine  ; 
and  if  any  hurt  be  done  to  Z  in  consequence  of  the  abetment,  he  will 
be  liable  to  imprisonment  for  a  term  which  may  extend  to  fourteen 
years,  and  to  fine. 

For  the  offences  which  are  punishable  with  death  or  trans- 
portation for  life.     See  page  33. 

"  If  that  offence  be  not  committed  in  consequence,*'  &c.  The 
notes  to  Section  109  should  be  referred  to.  The  present  Section 
punishes  the  abetment  of  certain  offences  which  are  either  not 
committed  at  all,  or  not  committed  in  consequence  of  abetment^ 
or  only  in  part  committed. 

"  Hurt'* — Whoever  causes  bodily  pain,  disease,  or  infirmity^ 
causes  hurt.     See  Section  319. 

There  should  be  proof  of  instigation  or  some  other  kind 
of  abetment,  and  of  the  object  of  such  instigation  ;  and  (under 
the  latter  clause)  of  hurt  caused  by  an  act  done  in  consequence. 

116.    Whoever  abets  an  offence  punishable  with 
Abetment  of  an  offence  pu-     imprisonment    shall,    if  that 

nishable  with  imprisonment,         ^/  ,  ,  .  i  i     -i     . 

if  the  offence  be  not  commit-    oilence  be  not  Committed  in 

ted    in   oonaequenoe  of  the  o  ^i  i     i  . 

abetment.  consequcncc  ot  the  abetment, 

and  no  express  provision  is  made  by  this  Code  for 
the  punishment  of  such  abetment,  be  punished  with 
imprisonment  of  any  description  provided  for  that 
offence,  for  a  term  which  may  extend  to  one-fourth 
part  of  the  longest  term  provided  for  that  offence,  or 
with  such  fine  as  is  provided  for  that  offence,  or  with 
ifthe  abettor  or  the  person  hoth  ;  and  if  the  abcttor  or 
5^h^o'SS^duVyi?i?J??rVe^nT?^  tljp  pcrsou  abcttcd  is  a  pubHc 
*>^^^^'  servant,  whose  duty  it  is  to 

prevent  the  commission  of  such  offence,  the  abettor 
shall  be  punished  with  imprisonment  of  any  descrip- 
tion provided  for  that  offence,  for  a  term  which  may 


94  CHAPTER  V- 

extend  to  one-half  of  the  longest  term  provided  for 
that  offence,  or  with  such  fine  as  is  provided  for  the 
offence,  or  with  hoth. 

Illustrations. 

(a)  A  offers  a  bribe  to  B,  a  public  servant,  as  a  reward  for  showing 
A  some  favour  in  the  exercise  of  B's  oflficial  functions.  B  refuses  to 
accept  the  bribe.     A  is  punishable  under  this  Section. 

(b)  A  instigates  B  to  give  false  evidence.  Here,  if  B  does  not 
eive  false  evidence,  A  has  nevertheless  committed  the  offence  defined 
in  this  Section,  and  is  punishable  accordingly. 

(c)  A,  a  police  officer,  whose  duty  it  is  to  prevent  robbery,  abets 
the  commission  of  robbery.  Here,  though  the  robbery  be  not  com- 
mitted, A  is  liable  to  one-half  of  the  longest  term  of  imprisonment 
provided  for  that  offence,  and  also  to  fine. 

{d)  B  abets  the  commission  of  a  robbery  by  A,  a  police  officer, 
whose  duty  it  is  to  prevent  that  offence.  Here,  though  the  robbery 
be  not  committed,  B  is  liable  to  one-half  of  the  longest  term  of  im- 
prisonment provided  for  the  offence  of  robbery,  and  also  to  fine. 

Pop  tke  offences  punishable  with  transportation,  see  p.  33, 
ante. 

The  proof  will  be  the  same  as  under  the  preceding  Section ; 
except  that  to  support  a  charge  under  the  last  clause  of  the 
present  Section,  there  must  be  proof  that  the  person  is  a  Police 
Officer  or  other  such  public  servant.  Proof  that  he  acted  aa 
such  public  servant  will  be  sufficient.  See  Section  21,  Ex- 
planation 2, 

117.    Whoever  ahets  the  commission  of  an  offence 
^1.^,    *!.  4  ^      *    ^y  the  puhlic  generally  or  by 

Abttttins  the  oommission  of         •^  ^^  c>  ^  J 

an ofifencebT the pubUo op  by    anv numbor  or  class  01  porsons 

more  than  10  persons.  •^       ^.  .  i     n    i 

exceedmg  ten,  shall  be  pun- 
ished with  imprisonment  of  either  description  for  a 
term  which  may  extend  to  three  years,  or  with  fine, 
or  with  both. 

Illv^stration. 

A  affixes  in  a  puhlic  place  a  placard,  instigating  a  sect  consisting 
of  more  than  ten  members  to  meet  at  a  certain  time  and  place,  for 
the  purpose  of  attacking  the  members  of  an  adverse  sect,  while  en- 
gaged in  a  procession.  A  has  committed  the  offence  defined  in  this 
Section. 


ABETMENT.  95 

The  word  "public'^  is  explained.     See  Section  12. 

It  will  be  suificient  to  shew  any  instigation  or  other  mode  of 
abetmentj  thoagh  neither  the  effect  intended^  nor  any  effect 
follows  from  it.  It  seems  the  evidence  should  show  either 
some  act  done^  or  if  words  spoken  are  relied  on^  that  they 
were  spoken  deliberately  and  advisedly. 

The  remaining  Sections  of  this  Chapter  relate  to  an  offence 
(the  concealing,  or  making  a  false  representation,  of  a  design  to 
commit  certain  offences)  which  does  not,  it  seems  amount  to 
abetment  of  any  of  the  kinds  hitherto  mentioned.  We  have 
seen  that  a  wilful  misrepresentation  or  concealment  constitutes 
abetment  by  instigation,  only  when  it  concerns  a  material  fact 
which  a  person  is  bound  by  some  legal  duty  to  disclose.  AU 
the  modes  of  abetment  hitherto  spoken  of  are  such  as  by  their 
influence  and  positive  efficacy  conduce  to  the  commission  of 
the  act  or  offence. 

In  the  offences  made  punishable  by  the  three  remaining 
Sections, — which  offences  although  treated  of  in  this  Chapter 
of  Abetment,  are  nowhere  said  to  constitute  abetment, — the  aid 
given  is  of  a  remote  kind :  and  the  offences,  which  appear  rather 
to  belong  to  the  Chapter  of  Offences  against  Public  Justice 
than  to  Abetment,  are  complete  although  that  which  constitutes 
them  falls  short  of  any  of  the  modes  of  abetment  yet  described^ 
The  offender  facilitates  the  commission  of  an  offence,  because 
by  this  concealment  or  misrepresentation  the  attention  of  those 
interested,  who  would  probably  prevent  the  commission,  is  not 
excited.  But  his  conduct,  though  it  tends  to  facilitate  the  offence, 
does  so  in  a  remote  degree.  Indeed  a  concealment  may  possibly 
be  in  no  way  intended  to  obstruct  public  justice,  but  rather 
calculated  to  prevent  the  commission  of  an  offence :  as  if  a 
person  should  conceal, — ^that  is,  omit  to  disclose, — some  criminal 
design  of  his  friend  in  the  hope  that  his  influence  might  prevail 
U>  induce  him  to  lay  aside  his  purposie. 


96  CHAPTER   V. 


118.     Whoever  intending  to  facilitate,  or  knowing 

ConceaHnffadesigntooom-      it    tO    be    likely    that    he    will 

^th  d^ath^r^'Sa^^rtati^^^^  thereby  facilitate,  the  comrais- 
^^'^^®  sion  of  an  offence  punishable 

with  death  or  transportation  for  life,  voluntarily  con* 
ceals,  by  any  act  or  illegal  omission,  the  existence 
of  a  design  to  commit  such  offence,  or  makes  any  re- 

n  the  offence  be  committed,  presentation  wMch  hc  knows 
to  be  false  respecting  such  design  shall,  if  that  offence 
be  committed,  be  punished  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to 

If  the  offence  be  not  com-  scvcn  ycars ;  or,  if  the  offence 
^^^^^  be  not  committed,  with  impri* 

sonment  of  either  description  for  a  term  which  may 
extend  to  three  years ;  and  in  either  case  shall  also  be 
liable  to  fine. 

Illustration. 

A,  knowing  that  dacoity  is  about  to  be  committed  at  B,  falsely 
informs  the  Magistrate  that  a  dacoity  is  about  to  be  committed  at 
C,  a  place  in  an  opposite  direction,  and  thereby  misleads  the  Magis- 
trate with  intent  to  facilitate  the  commission  of  the  offence.  The 
dacoity  is  committed  at  B  in  pursuance  of  the  design.  A  is  pu-» 
nishable  under  this  Section. 

'^  Whoever,  &cJ'  The  Section  is  general  in  its  term  and  would 
seem  to  apply  to  all  persons,  not  merely  to  Officers  of  Justice 
or  public  servants  whose  duty  it  is  to  prevent  crime  and  to 
give  information  concerning  oflfenders.  But  concealment  by 
illegal  omission  can  be  an  offence  only  when  the  omission  is  by 
some  person  bound  by  law  to  make  report  of  offences, 

''  The  existence  of  a  design,  &c.'^  There  must  exist  a  design 
to  commit  at  some  future  time  an  offence  of  the  kind  described, 
and  no  conviction  should  take  place  until  the  Court  has 
sufficient  proof  that  such  a  design  existed.  Usually,  the  crimi- 
nal law  does  not  attempt  to  reach  the  wicked  designs  or 
intentions  of  men,  until  they  have  been  made  manifest  by  out- 
ward acts.  And  in  the  present  case  it  would  seem  proper  that 
the  existence  of  the  design  should  be  proved  and  established 
to  the  judge^s  satisfaction  by  proof  of  some  open  act  (or  some 


ABETMENT.  97 

illegal  omission)  such  as  is  requisite  in  abetment  by  conspiracy ; 
or  by  advised  and  open  speaking.  Mere  idle  talk,  boasting  &c., 
would  not  prove  it ;  there  must  be  some  design  which,  if  not 
completely  fixed  and  settled,  has  proceeded  towards  completion. 

The  concealment  must  be  voluntary;  that  is,  it  must  be 
intended  on  the  part  of  the  person  concealing,  or,  if  he  had 
no  actual  intention,  his  act  must  have  been  likely  to  cause  the 
result.  And  so  of  the  misrepresentation.  It  seems  that  here, 
as  in  the  case  of  abetment  by  instigation,  the  misrepresentation 
respecting  the  design  must  be  of  something  material.  The 
essence  of  this  offence  is  the  intention  or  knowledge  that  the 
commission  of  a  grave  offence  will  be  facilitated. .  If  the  evi- 
dence establishes  the  existence  of  a  criminal  design  and  the 
knowledge  of  such  design  by  the  accused  person,  his  guilty  in- 
tention to  facilitate  its  commission  may  be  inferred,  unless  he  can 
satisfactorily  explain  the  act  orillegal  omission  imputed  to  him. 

''An  offence  punishable  with  death  or  transportation  for 
life,'^  &c.     See  a  list  of  such  offences  ante,  pp.  33,  34. 

"  If  that  offence  be  committed,  &c.^^  As  in  abetment,  the 
punishment  varies  according  as  the  offence  is  committed  or  not. 
Suppose  the  very  offence  designed  is  not  committed,  but  another 
offence  sufficiently  akin  to  it  to  make  an  abettor  liable  for  the 
offence  actually  committed  (Section  111  ante), — the  offender 
nnder  the  present  Section  would,  it  seems,  in  like  manner  be 
answerable. 

119.    Whoever,  being  a  public  servant,  intending 

^     ^„  ^         ,.        to  facilitate,  or  knowing  it  to 

A  public  servant  oonoealing      -       i.i     i      it     i  t  -n    ii  ^ 

•  desimi^  commit  an  offence     bc  likclv  that  he  Will  thereby 

whichit  is  his  duty  to  prevent.       n     ^^^l    r       j-,  .      .  % 

lacilitate,  the  commission  of 
an  offence  which  it  is  his  duty  as  such  public  servant 
to  prevent,  voluntarily  conceals,  by  any  act  or 
illegal  omission,  the  existence  of  a  design  to  com- 
mit such  offence,  or  makes  any  representation 
which  he  knows  to  be  false  respecting  such  design. 
If  the  offence  be  committed,  shall,  if  the  offcncc  bc  Commit- 
ted, be  punished  with  imprisonment  of  any  descrip- 
tion provided  for  the  offence,  for  a  term  which  may 

0 


98  CHAPTER  V. 

extend  to  one-half  of  the  longest  term  of  such  im- 
prisonment, or  with  snch  fine  as  is  provided  for  that 
oflfence,  or  with  both ;  or,  if  the  oflFence  be  punishable 

ifthoofTenoebepuniflhabie    ^^^  death  or  transportation 
with  death.  Ac.  f^j.  jif^^  ^^j^  imprisonment  of 

either  description  for  a  term  which  may  extend  to 
If  the  offence  be  not  com-     t^n  ycars ;  or,  if  the  offence  be 
""**®^  not  committed,  shall  be  punish- 

ed with  imprisonment  of  any  description  provided 
for  the  offence  for  a  term  which  may  extend  to  one- 
fourth  part  of  the  longest  term  of  such  imprisonment, 
or  with  such  fine  as  is  provided  for  the  offence,  or 
with  both. 

Illustration. 

A,  an  officer  of  police,  being  legally  bound  to  give  information  of 
all  designs  to  commit  robbery  whicb  may  come  to  his  knowledge,  and 
knowing  that  B  designs  to  commit  robbery,  omits  to  give  such  in* 
formation,  with  intent  to  facilitate-  the  commission  of  that  offence. 
Here  A  has  by  an  illegal  omission  concealed  the  existence  of  B's  design, 
and  is  liable  to  punishment  according  to  the  provision  of  this  Section. 

See  the  note  to  the  last  preceding  Section,     The  oflTence  is 

aggravated  here,  because  the  offender  is  a  public  servant. 

120.    Whoever,  intending  to  facilitate  or  knowing 

„       .  ,    ^  it  to  be  likely  that  he  will 

Oonoealing  a  design  to  oom-       .,         -       ^     .f.\      ii  . 

xnit  an  offence  pvinishable  with  tnercbV  laCllltate  the  COmmiS-* 
imprisonment.  •  /  xp  -1.1.1 

sion  of  an  offence  punishable 
with  imprisonment,  voluntarily  conceals,  by  any  act 
or  illegal  omission,  the  existence  of  a  design  to  commit 
such  offence,  or  makes  any  representation  which  he 
knows  to  be  false  respecting  such  design,  shall,  if  the 

If  the  offence  be  committed.      offeUCC  bc  Committed,  bcpUU- 

ished  with  imprisonment  of  the  description  provided 
for  the  offence  for  a  term  which  may  extend  to  one- 
if  not  committed.  fourth,  and,  if  the  offence  be 

not  committed,  to  one-eighth  of  the  longest  term  of 
such  imprisonment,  or  with  such  fine  as  is  provided 
for  the  offence,  or  with  both. 

See  the  note  to  Section  118.  The  design  which  is  concealed 
is  to  commit  a  less  heinous  offence  than  the  offences  there  re* 
ferred  to. 


OFFENCES  AGAINST  TEE   STATE,  99 

Chapter  VI. 
OF  OFFENCES  AGAINST  THE  STATE. 


Three  classes  of  offences  are  made  punishable  by  this 
Chapter.  1.  Offences  against  the  Queen  and  her  Govern- 
ment. 2.  Offences  concerning  the  relations  of  the  Indian 
Government  with  other  Governments.  3.  Offences  touching 
the  custody  of  Prisoners  of  State  or  of  War.  Of  these  the  first 
class  is  the  most  important. 

I.     Offences  against  the  Queen  and  her  Government. 

It  is  necessary  to  punish  with  severity  those  offences  which 
threaten  to  destroy  or  injure  the  whole  fabric  of  political  society. 
The  subversion  of  the  Government,  with  the  consequent 
dissolution  of  the  bonds  of  civil  society,  is  commonly  re- 
garded as  the  highest  crime  a  member  of  a  community  can 
perpetrate.  It  is  a  duty  which  every  subject  owes  to  the  Govern- 
ment under  which  he  lives  not  to  attempt  its  overthrow,  and  to 
give  to  the  State  and  its  Rulers,  in  return  for  that  protection 
which  the  State  affords  to  him,  a  true  and  faithful  obedience. 
The  tie  which  thus  binds  the  subject  to  the  State  is  called 
allegiance.* 

The  people  of  British  India,  besides  the  allegiance  which 
they  owe  to  the  Queen  in  common  with  all  her  subjects 
throughout  her  dominions,  are  bound  also  to  submit  themselves 
to  the  authority  of  those  who  are  appointed  by  her  to  adminis- 

*  In  the  Bojal  Proolamadon  issued  on  the  assumption  of  the  Gk)vem- 
ment  of  ihe  British  Territories  in  India  by  the  Qneen,  Her  Majesty  notifies 
and  declares  as  follows:  ''We  haye  taken  npon  ourselves  the  said  Gk)vem- 
ment ;  and  we  hereby  call  upon  all  our  subjects  within  the  said  Territories  to  be 
faithftil,  and  to  bear  true  allegianoe  to  us,  our  heirs  and  successors,  and  to  submit 
themselyes  to  the  authority  of  those  whom  we  may  hereafter,  from  time  to  time, 
aee  fit  to  appoint  to  administer  the  Goyemment  of  our  said  Territories,  in  our 
name  and  on  our  b^alf." 

And  further,  "  We  hold  ourselyes  bound  to  the  Natives  of  our  Indian  Terri- 
tories  by  the  same  obligations  of  duty  which  bind  us  to  all  our  other  subjects ; 
and  those  obh'gations,  by  the  blessing  of  Almighty  God  we  shall  faithftdly  and 
conscientiously  fidfil/' 

o  2 


100  CHAPTER  VI. 

tor  the  Government  of  British  India.  Her  Indian  subjects 
may  be  gnilty  o^  criminal  acts  which  are  offences  against  the 
Government  of  India^  as  well  as  of  criminal  acts  which  are 
offences  against  the  general  Government  of  the  British  empire. 
It  is  only  so  far  as  offences  of  both  these  descriptions  are  defined 
and  punished  by  this  Code  that  it  is  necessary  to  notice  them 
here. 

The  English  law  of  high  treason,  by  which  offences  in 
breach  of  the  allegiance  owing  to  the  Queen  by  her  subjects 
are  punished,  includes  certain  offences  subversive  of  the  Govern- 
ment, or  directed  immediately  against  the  person  of  the  Sove- 
reign and  certain  members  of  the  royal  family.  Of  these  the 
following  are  the  chief;  1.  Compassing  or  imagining  the 
death  of  the  king,  the  queen  consort,  or  their  eldest  son  and 
heir:  2.  Levying  war  against  the  king  within  his  realm: 
3.  Adherence  to  the  king's  enemies  in  his  realm,  giving  them 
aid  and  comfort  in  the  realm  or  elsewhere.  Under  this  descrip- 
tion— ^king — a  queen  regnant,  such  as  Queen  Elizabeth  and  our 
present  gracious  sovereign  Queen  Victoria,  is  included. 

This  law,  overlaid  by  a  mass  of  constructions  and  precedents, 
is  still  the  English  Statute  law  of  high  treason.  Its  applica- 
tion to  persons  in  India  not  subject  to  the  jurisdiction  of  the 
Courts  established  by  Eoyal  Charter  has  been  considered 
exceedingly  doubtful ;  and  it  is  quite  certain  that  no  Mofnssil 
Court  has  ever  enforced  it  against  a  native,  It  is  not  necessary 
to  notice  further  the  law  of  treason.  As  far  as  that  law  respects 
offences  directed  immediately  against  the  person  of  the  Sove- 
reign and  the  members  of  the  royal  funily,  occasion  for  it  can 
scarcely  arise  in  India, 

The  main  characteristic  of  the  State  offences  contained  in  the 
first  part  of  this  Chapter,  is  the  breach  of  the  allegiance  due 
from  the  subject  to  the  ruler  ;  and  allegiance  has  been  explained 
to  be  the  tie  which  binds  the  subject  to  the  State  in  return  for 
the  protection  he  receives.  These  Sections  therefore  apply 
only  to  such  persons  as  owe  alle^ance  to  the  Government. 
This  allegiance  is  natural, — that  is,  arising  from  birth  under  the 


OFFENCES  AGAINST  THE   STATE.  101 

protection  of  the  Government :  or  local,— that  is,  arising  from 
temporary  residence  under  such  protection,  as  when  a  foreigner 
enters  the  country,  and  accepts  the  protection  of  the  Govern- 
ment and  so  submits  to  obey  its  laws. 

121.    Whoever  wages  war  against  the  Queen,  or 

Waidng   or  attempting  to      attempts  to  Wage  SUCh  War,  OF 

ZfSi'^'S^'^e^viJe'S:    ^?®*?  *^®  waging  Of  such  war, 

shall  be  punished  with  death, 
or  transportation  for  life,  and  shall  forfeit  all  his 
property. 

Illu€trations. 

(a)  A  joins  an  insurrection  against  the  Queen.  A  has  committed 
Uie  offence  defined  in  this  Section. 

(b)  A  in  India  abets  an  insurrection  against  the  Queen's  Govern- 
ment of  Ceylon  by  sending  arms  to  the  insurgents.  A  is  guilty  of 
abetting  the  waging  of  war  against  the  Queen» 

All  persons  owing  allegiance  to  the  Queen  may  be  guilty 
of  this  offence,  but  not  foreigners,  who  owe  no  allegiance  and 
for  whom  the  Indian  legislature  has  no  power  to  make  laws. 
Therefore  a  Prince  or  subject  of  a  foreign  State  by  which  war 
is  lawfully  waged  against  our  Government,  is  not  within  the 
meaning  of  this  Section.  But  foreigners  owing  local  allegiance 
are  within  the  Section. 

**  Wages  war  against,  &o.''  The  simple  construction  of  these 
terms  must,  it  is  conceived,  be  adopted.* 

The  words  seem  naturally  to  import  a  waging  or  levying  of 
war  by  one  who,  throwing  off  the  duty  of  allegiance,  arrays 
himself  in  open  defiance  of  his  Sovereign  or  rulers  in  like  man- 
ner and  by  the  like  means  as  a  foreign  enemy  would  do  having 
obtained   a  footing   within  British  territories.     An  array   of 


•  The  eorresponding  phrase  "  levy  war"  in  the  English  law  of  treaaon  has 
reoeiYed  a  latitude  of  oonstmction  which  would  probably  not  be  applied  to  this 
provision.  The  Statue  11  and  12  Viot.  12,  though  not  affecting  the  old  law 
of  treason,  has  now  confined  the  expression  **  levy  war^'  within  narrow  and  definite 
limits.  The  so^salled  war  must  be  levied  for  one  of  the  definite  objects  specified 
in  the  Act,  ♦.  e, — in  order  by  force  or  constraint  to  compel  the  Qaeon  to  change 
her  oonnsels,  or — in  order  to  put  force  or  constraint  upon,  or  in  order  to  intimidate 
or  overawe,  both  Houses  or  either  House  of  Parliament,  or — in  order  to  move  or 
stir  any  foreigner  or  stranger  with  force  to  invade  any  of  the  Queen's  dominions. 


102  CHAPTEE  VI- 

force  seems  intended  :  war  waged  within  the  British  territories, 
not  of  a  different  nature  from  a  war  waged  out  of  them.  An. 
insorrection  to  change  or  destroy  the  Government  itself  is 
meant.  An  endeavour  by  violence  to  suppress  in  particular  cases 
the  execution  of  laws  enacted  by  the  Government,  or  to  violate 
and  overbear  the  protection  they  afford  to  individuals,  though 
such  endeavour  may  constitute  grave  offences  against  indivi- 
duals, would  not  probably  be  offences  against  the  State.  So,  if 
we  suppose  the  like  endeavours  to  be  directed  not  against 
individuals  but  against  a  class  of  the  community  by  premeditated 
open  acts  of  violence,  hostility,  and  force,  it  may  also  perhaps 
be  questioned  whether  the  offenders  are  amenable  to  this  Sec- 
tion of  the  Code  as  State  offenders :  for  they  have  no  design  to 
hurt  or  destroy  the  Government  by  their  violent  insult  and 
infraction  of  its  laws. 

Attempts  and  abetments  in  the  case  of  great  State  offences 
are  not  left  to  be  punished  in  the  ordinary  way  by  the  pro- 
visions contained  in  the  Chapters  on  those  heads.  Express 
provision  is  made  for  their  punishment,  whether  the  offence 
is  committed  or  not,  in  the  same  way  as  the  offence  itself. 
Plots  and  preparations  for  State  offences  are  not  left  to  the 
ordinary  law  of  abetment,  because  such  offences,  and  especially 
the  most  heinous  and  formidable  State  crimes,  have  this  pecu- 
liarity, that  if  they  are  successfully  committed,  the  criminal  is 
almost  always  secure  from  punishment. 

'^Attempts  to  wage  &c.^'  An  attempt  is  an  intention  to 
do  a  thing,  combined  with  an  act  which  falls  short  of  the  thing 
intended.  Coupled  with  the  intention,  any  illegal  act  which 
is  not  merely  a  step  towards  the  commission  of  the  offence  but 
a  commencement  of  the  execution  of  the  criminal  purpose  will 
constitute  an  attempt. 

^^  Or  abets,  &c.^^  The  several  modes  of  abetment  are  de- 
scribed in  Section  107  ante.  Proof  should  be  given  of  the  acts 
which  constitute  the  waging  or  attempt,  &c.  If  the  prisoner 
is  ordinarily  resident  in  our  temtories,  he  may  be  taken  to  be 
a  person  owing  allegiance  to  the  Queen. 


OFFENCES  AGAINST  THE   STATE.  103 

122.  Whoever  collects  men,  arms,  or  ammunition, 

or  otherwise  prepares  to  wage 

OolleotinflT  arms.  Ao*   with.  .ii    ji      •    a       a  •  n    .ii 

ttie  intentton  oifiraging  wx  wax  With  the  mtcntion  01  Cither 
•sainst  the  Queen.  waging,  or  bcing  prepared  to 

wage  war  against  the  Queen,  shall  be  punished  with 
transportation  for  life  or  imprisonment  of  either  de- 
scription  for  a  term  not  exceeding  ten  years,  and  shall 
forfeit  all  his  property. 

The  acts  made  pnnishftble  by  this  Section  cannot  be  con- 
sidered attempts ;  thay  are  in  trnth  preparations  made  for 
committing  the  offence  of  waging  war.  Such  acts  would  seem 
to  constitnte  the  doer  an  abettor,  if  done  in  aid  of  others  who 
are  waging  or  who  intend  to  wage  war. 

"  Or  otherwise  prepares,  Ac.,'*  as  by  making  or  strengthen- 
ing a  fort,  by  accumulating  stores  and  munitions  of  war  of 
any  kind^  &c. 

123.  Whoever  by  any  act,  or  by  any  illegal  omis- 

Conoealinff  with  intent  to      SlOn,  COUCCals  the   CXistcnCC  of 

liiSHtSiiaesicntowagewfir.  ^  dcsigu  to  wagc  war  agaiust 
the  Queen,  intending  by  such  concealment  to  facilt- 
tate,  or  knowing  it  to  be  likely  that  such  conceal- 
ment will  facilitate  the  waging  of  such  war,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  ten  years,  and  shall  also 
be  liable  to  fine. 

''Whoever,  &c."  The  persons  hereby  comprised  are  the 
same  as  those  in  the  previous  Sections.  The  offence  punished 
by  this  Section  is  like  a  species  of  abetment  by  aid,  such  as  is 
mentioned  in  Section  118  of  the  preceding  Chapter.  The 
concealment  here  may  be  either  by  an  act  or  by  an  illegal 
omission :  but  it  must  be  a  concealment  with  an  intention 
and  knowledge  which  shew  a  wish  to  facilitate  the  execution 
of  a  design  to  wage  war :  and  the  existence  of  the  design  must 
be  proved. 


104  CHAPTER  TI, 

124.    Whoever  with  tlie   intention  of   inducing 

Assaulting  Govemor-Gener-     o^  Compelling  the  Govemor- 

&cX%Tor^1°B^rS?n'^£?l5*    General  of  India,  or  the  Go- 

ercise  of  any  lawful  power.       ycmor  of  any  Presidency,  or  a 

Lieutenant-Governor,  or  a  Member  of  the  Council 
of  the  Governor-General  of  India,  or  of  the  Council 
of  any  Presidency,  to  exercise  or  refrain  from  exer- 
cising in  any  manner  any  of  the  lawful  powers  of  such 
Governor-General,  Governor,  Lieutenant-Governor, 
or  Member  of  Council,  assaults  or  wrongfully 
restrains,  or  attempts  wrongfully  to  restrain,  or 
overawes  by  means  of  oriminal  force  or  the  show  of 
criminal  force,  or  attempts  so  to  overawe  such  Go- 
vernor-General, Governor,  Lieutenant-Governor,  or 
Member  of  Council,  shall  be  punished  with  imprison- 
ment of  either  description  for  a  term  which  may  ex- 
tend to  seven  years,  and  shall  also  be  liable  to  fine. 

'' Assaults  or  wrongfully  restrains/^  &c.  The  oflFences  here 
iDnumerated  {assault  &c.)  will  be  found  defined  in  subsequent 
Chapters.  When  these  offences  are  committed  and  the  aggrava- 
tion is  added,  that  they  are  committed  with  the  intention  men- 
tioned in  this  Section  and  are  directed  immediately  against  the 
persons  of  the  members  of  the  Government,  they  rank  as 
offences  against  the  State. 

II.  Offences  concerning  the  relations  of  the  British  Govern- 
ment in  India  with  other  Governments,  are  the  second  class  of 
offences  included  in  this  Chapter.  The  relations  between  States, 
and  the  duties  owing  by  them  to  one  another,  are  matters 
beyond  the  scope  of  the  municipal  law  of  any  particular  State, 
But  it  is  competent  to  every  State,  and  is  even  its  duty,  to  pro- 
vide that  its  citizens,  or  those  whom  it  has  power  to  bind  by 
law,  shall  do  nothing  to  injure  its  allies  or*  those  States  with 
whom  it  holds  friendly  relations.  All  who  owe  obedience  to 
the  laws  of  British  India  are  subject  to  the  following  provi- 
sions,— and  this  as  well  for  what  they  do  beyond,  as  for  what 
they  do  within,  British  Indian  territories. 


OFFENCES  AGAINST  THE   STATE.  105 

125.  Whoever  wages  war  against  the  Government 
^  ^  ,   ^  of  any  Asiatic  power  in  alli- 

waffing   war    against   any  •'  ,  *  *ii        it 

^a^powArinauiaAoewith    ance  or  at  pcaco    With    the 

Queen,  or  attempts  to  wage 
such  war,  or  ahets  the  waging  of  such  War,  shall  be 
punished  with  transportation  for  life,  to  which  fine 
may  be  added ;  or  with  imprisonment  of  either  de- 
scription for  a  term  which  may  extend  to  seven  years, 
to  which  fine  may  be  added ;  or  with  fine. 

Persons  whether  subjects  of  the  Qneen,  or  refugees  and 
aliens  who  have  taken  up  their  abode  temporarily  in  our  terri- 
tories, must  be  restrained  from  making  British  India  the  focus 
of  intrigues  and  enterprises  for  the  restoration  of  deposed  rulers^ 
or  other  like  purposes.  And  the  fulfilment  of  the  obligations 
of  the  State  to  allies  and  friendly  powers,  requires  that  the 
abetment  of  such  schemes  by  its  subjects,  whether  by  furnish- 
ing supplies  or  otherwise,  should  be  forbidden. 

Persons  owing  obedience  to  our  laws  will  be  punishable  for 
these  offences  although  committed  beyond  the  limits  of  British 
India. 

126.  Whoever    commits    depredation,  or  makes 
,^    ^      ^  ,,  preparations  to  commit  depre- 

OommiUins  depredation  on      \    ,¥  .,  .        -j      •    *"      if 

the  territories  of  any  power  at      datlOn.     On  the     temtoneS    Ot 
peaoe  witli  tbe  Qiiieen*  •  -ii*  a 

any  power  in  alliance  or  at 
peace  with  the  Queen,  shall  be  punished  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to  fine 
and  to  forfeiture  of  any  property  used  or  intended  to 
be  used  in  committing  such  depredation,  or  acquired 
by  such  depredation* 

"  Commits  depredation,  &c/*  Something  more  than  a  mere 
outrage  against  the  property  of  an  individual  seems  contem- 
plated; probably  the  license  which  native  chiefs  sometimes 
use,  or  allow  their  people  to  use,  of  making  predatory  expedi- 
tions into  adjacent  territory  to  plunder  cattle,  grain,  &c. 

"Makes  preparation  to,'^  &c.    See  the  notes  to  Section  121. 


106  CHAPTER  VI. 

127-     Whoever  receives  any  property  knowing  the 
HeceiTin(f  property  taken     Same  to  have  been  taken  in 
Ji^nTfii' ie^uo^s'i25^^d    the  commission  of  any  of  the 
^2®*  offences  mentioned  in  Sections 

125  and  126,  shall  be  punished  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to 
seven  years,  and  shall  also  be  liable  to  fine  and  to  for- 
feiture of  the  property  so  received. 

The  depredators,  be  tbey  our  own  subjects,  or  foreigners  tak- 
ing refnge  with  their  plunder  within  our  borders,  would  not,  it  is 
conceived,  come  within  this  provision,  by  their  mere  posses- 
sion of  that  booty :  there  must  be  a  fresh  act  of  receiving, 
something  in  the  nature  of  a  transfer  of  the  property  to  new 
hands.  Persons  purchasing  at  a  nominal  price  cattle,  &c., 
knowing  how  they  had  been  obtained,  would  be  punishable 
under  this  Section. 

III.  Offences  concerning  the  custody  of  prisoners  of  Stat© 
or  of  War  are  also  included  among  State  offences.  The  extreme 
importance  of  the  safe  custody  of  those  prisoners  of  State  or 
War  whom  the  British  Government  sometimes  hold  in  charge 
in  India,  probably  accounts  for  the  insertion  of  these  provisions 
here. 

128.     Whoever,  being  a  public  servant  and  having 
^  ...  ^     ,    *  ^,      the  custody  of  any  State  Pri- 

Fublio  servant  volimtarily  *^ -r^   •         "^  /»     -«r 

auowing  prisoner  of  State  or     soucr    or    Jrrisoner   ot     War, 

war  in  his  oustody  to  escape.  -i        ^       -i        n  i  • 

voluntarily  allows  such  prison- 
er to  escape  from  any  place  in  which  such  prisoner  is 
confined,  shall  be  punished  with  transportation  for 
life,  or  imprisonment  of  either  description  for  a  term 
which  may  extend  to  ten  years,  and  shall  also  be  lia- 
ble to  fine. 

Regulation  III.  1818  of  the  Bengal  Code,  Begulation  II. 
1819  of  the  Madras  Code,  and  Regulation  XXV.  1827  of  the 
Bombay  Code,  extended  by  ^cts  XXXIV.  of  1850  and  III.  of 
1858,  are  the  laws  which  authorize  the  detention  of  persons  as 


OFFENCES  AGAINST   THE   STATE.  107 

State  prisoners.  It  does  not  seem  certain  whether  persons  amen- 
able to  the  jarisdiction  of  our  Courts  and  convicted  of  any  of  the 
offences  contained  in  this  Chapter,  would  be  properly  deemed 
Prisoners  of  State.  A  person  brought  into  our  territory  by 
the  British  Government  with  the  concurrence  of  his  own>  and 
detained  here  involuntarily  on  political  grounds,  though  a  State 
prisoner  within  the  meaning  of  this  Chapter,  could  hardly  be 
guilty  of  a  State  offence  under  any  of  the  preceding  Sections. 

A  prisoner  of  war  is  one  who  in  war  is  taken  in  arras.  Those 
who  are  not  in  arms,  or  who  being  in  arms  submit  and  surren- 
der themselves,  are  not  to  be  slain  but  to  be  made  prisoners.  But 
it  seems  those  only  are  prisoners  of  war  who  are  taken  in  arms. 

*'  Voluntarily/'  The  meaning  of  this  word,  as  importing  that 
the  act  of  the  public  servants  is  intentional,  or  done  with  a 
knowledge  of  the  probable  consequences,  should  be  bornjB  in 
mind.     See  Section  39. 

To  support  a  charge  under  this  Section,  there  should  be  proof 
that  the  escaped  person  was  in  a  place  of  confinement  as  a  pri- 
soner of  State  or  of  War ;  that  the  accused  person  was  the 
gaoler,  &c.,  who  had  the  custody  of  the  prisoner,  which  will 
sufficiently  be  shown  by  proof  that  he  was  actually  in  charge ; 
and  that  he  allowed  the  escape  intentionally  or  knowingly,  or 
aided  it  by  supplying  the  prisoner  with  the  means  of  effecting  it. 

129.    Whoever,  being  a  public  servant  and  having 
_^^,.  ,      „     „      the  custody  of  any  State  Pri- 

•uflrerinflfprisonerofState  or  SOUOr  01  FriSOUer  01  AV  ar, 
Wmr  in  Bis  oustody  to  esoape.  ^  ,,  ^  t_     -0   • 

negligently  suiters  such  Pri- 
soner to  escape  from  any  place  of  confinement  in  which 
such  prisoner  is  confined,  shall  be  punished  with  sim- 
ple imprisonment  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  tine. 

This  offence  is  like  the  one  last  noticed,  with  the  mitigating 
circaiDStaaiOe  that  the  offence  is  not  caused   voluntarily,  but 
P  2 


108  CHAPTER   VI. 

suflfered  negligently.  The  proof  will  be  similar  to  proof  ander 
the  preceding  Section.  If  a  prisoner  breaks  from  the  gaol  or 
eludes  those  set  to  watch  lum^  the  accused  should  show 
that  the  gaol  was  in  a  proper  state  of  security  and  that  due 
yigilanoe  was  used.  The  principal  officer  in  charge  might 
probably  be  held  criminally  responsible  under  this  Section  for 
the  conduct  of  his  subordinates* 

130.    Whoever  knowingly  aids  or  assists  any  State 

Aiding  escape  of.  rescuing,    pnsoner  OF  prisoHcr  of  War  in 

or  harbouring  such  prisoner,     escaping  from  lawful  custody, 

or  rescues  or  attempts  to  rescue  any  such  prisoner, 
or  harbours  or  conceals  any  such  prisoner  who  has 
escaped  from  lawful  custody,  or  offers  or  attempts  to 
offer  any  resistance  to  the  re-capture  of  such  prisoner, 
shall  be  punished  with  transportation  for  life,  or  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  ten  years,  and  shall  also  be  liable  to 
fine. 

Explanation. — 'A  State  Prisoner  or  Prisoner  of  War, 
who  is  permitted  to  be  at  large  on  his  parole  within 
certain  limits  in  British  India,  is  said  to  escape  from 
lawful  custody  if  he  goes  beyond  the  limits  within 
which  he  is  allowed  to  be  at  large, 

'^  Knowingly  aids.^*  It  is  essential  to  this  very  grave  offence 
to  show  that  the  accused  has  a  knowledge  of  the  character  in 
which  the  prisoner  is  confined,  i,  e.  that  he  is  a  prisoner  of  State 
or  of  War.  This  Section  uses  words  more  extensive  than  the  two 
preceding  ones  which  contemplate  an  escape  only  from  some  pri- 
son or  actual  place  of  custody.  From  this  Section  with  the  ex- 
planation, it  appears  that  the  prisoner's  escape  from  much  wider 
limits, — those  of  his  parole, — is  covered  by  the  expression ''  law- 
ful custody .'*  As  to  the  oflTence  of  harbouring,  no  exception  is 
made  here,  as  in  Sections  136,  212  and  216,  in  favour  of  the  wife 
or  any  member  of  the  prisoner's  family ;  though,  when  such  per- 
sons are  the  ofienders,  humanity  suggests  a  lighter  punishment. 


OFFENCES   BELATING  TO  THE  ARMY.  109 

Proof  should  be  given  tbat  the  person  who  escaped  was  in 
lawful  custody,  and  that  the  accused,  having  knowledge  of 
this  circumstance,  assisted  his  escape,  as  by  giving  him  tools^ 
supplying  him  with  means  of  conveyance,  &o. 


Chapter  VII, 

OF  OFFENCES  RELATING  TO  THE  ARMY 
AND  NAVY. 


This  Chapter  provides  for  the  punishment  of  those  persons 
who,  not  being  themselves  subject  to  Military  or  Naval  law, 
assist  or  instigate  those  who  are  subject  to  such  law  to  commit 
certain  gross  breaches  of  discipline.     See  Section  139. 

It  has  already  been  enacted  (Section  5)  that  nothing  in  this 
Act  is  intended  to  repeal,  vary,  suspend,  or  affect  any  of  the 
provisions  of  any  Act  for  punishing  mutiny  and  desertion. 
Nevertheless  the  general  provisions  of  this  Act,  subject  to  the 
above  saving  clause,  apply  to  offences  (see  Section  40)  com- 
mitted by  soldiers  and  sailors,  as  well  as  to  offences  committed 
by  other  members  of  the  community.  Any  offence  committed 
by  a  soldier  against  public  justice  or  against  property,  is  as  much 
punishable  under  this  Code  as  if  the  offender  had  been  a  private 
person,  unless,  by  the  saving  clause  above  quoted,  the  penal 
provisions  of  the  military  law  are  applicable.  And  whoever 
instigates  the  soldier  to  commit  such  offence  is  punishable 
under  the  general  provisions  of  the  Code. 

The  laws  to  which  the  Army  and  Navy  are  specially  subject, 
which  are  excepted  by  the  Sth  Section,  are  laws  far  more 
severe  than,  those  under  which  the  general  body  of  the 
people  live,  and  have  for  their  main  object,  the  maintenance 
of  discipline,  not  the  punishment  of  crime.    Purely  Military 


110  CHAPTEE  VII. 

offences^  whicli  soldiers  only  can  commit^  as  mutiny,  desertion, 
and  other  offences  to  the  prejudice  of  military  discipline,  are 
punished  by  those  Laws.  It  is  indeed  true,  that  they  also 
make  some  provision  for  the  punishment  of  such  offences  as 
are  made  punishable  by  the  present  Code :  but  generally 
speaking,  such  provisions  extend  only  to  certain  classes  of 
persons,  and  to  offences  committed  in  certain  places.  The  laws 
referred  to  are  here  shortly  mentioned. 

1 .  The  Mutiny  Act  which  is  passed  every  year  by  the  Imperial 
Parliament.  This  is  the  law  which  governs  the  Queen^s  Regi- 
ments serving  in  India.     It  relates  chiefly  to  military  discipline. 

2.  The  Statute  of  Parliament  20  and  21  Vict.  ch.  60 
("  for  punishing  mutiny  and  desertion  of  officers  and  soldiers 
in  the  service  of  the  East  India  Company'*).  This  is  the  law 
which  governs  whatever  portion  remains  of  the  European 
Forces  formerly  in  the  service  of  the  East  India  Company. 
Generally  those  Forces  now  form  part  of  Her  Majesty's  Army. 
This  law  relates  chiefly  to  military  discipline.  But  it  also 
provides  for  the  trial  and  punishment  of  certain  offences 
committed  at  any  place  more  than  120  miles  distant  from 
either  of  the  Presidency  towns  of  Calcutta,  Madras  and 
Bombay. 

Under  one  of  the  ''  Articles  of  War"  (that  is,  rules  for  the 
government  of  the  Forces  which  Her  Majesty  is  empowered  by 
each  of  these  Acts  of  Parliament  to  make)  Her  Majesty's  regi- 
ments in  India  are  subject  to  a  provision  like  the  above.  The 
result  i^pears  to  be  that  officers  and  soldiers  (not  being 
natives)  may  be  tried  by  Court  Martial  for  crimes  known 
to  the  English  criminal  law  as  amounting  to  treason  and 
felony,  and  for  any  other  crimes  against  person  or  property, 
if  committed  beyond  120  miles  from  a  Presidency  Town. 

In  general,  the  jurisdiction  of  the  ordinary  tribunab  and  their 
modes  of  proceeding  apply  to  soldiers  as  to  other  persons.  But 
when  offences  commonly  cognizable  by  such  tribunals  are 
committed  by  soldiers  in  places  beyond  a  certain  distance  from 
those  tribunals  or  in  places  where  no  such  tribunals  exist,  the 


OFFENCES  RELATING  TO  THE   ARMY.  Ill 

Coarts  Martial  acopire  jnrisdiction  ander  these  provisions  and 
may  deal  with  offenders  according  to  the  common  and  statute 
law  of  England  as  modified  by  laws  applicable  to  India. 

8.  For  the  Native  officers  and  soldiers  of  the  native  army  an 
Act  of  the  Legislative  Council  (XXIX.  of  1861)  for  consolidating 
and  amending  '*  the  Articles  of  War  for  the  Government  of  the 
Native  officers  and  Soldiers  in  Her  Majesty's  Indian  Army/' 
provides  rules  of  military  discipline  corresponding  with 
those  contained  in  the  Statutes  of  Parliament  and  Articles  of 
War  which  have  been  mentioned.  This  Act  though  generally 
known  by  the  title  of  "  Articles  of  War  for  the  Native  Army'' 
also  contains  a  complete  Code  of  non-military  offences  for  the 
persons  subject  to  it. 

4.  Regarding  sailors  in  the  Navy  (whether  the  Royal  Navy  or 
that  which  was  formerly  called  the  Indian  Navy),  it  is  enough 
to  say  that  for  the  Royal  Navy,  the  scheme  of  naval  discipline, 
instead  of  being  provided  for  by  annual  Acts  of  Parliament, 
as  in  the  case  of  the  Army,  is  laid  down  in  a  permanent  Statute. 
For  Her  Majesty's  Indian  Navy  the  8  and  4  Vict,  c  37,  Sec.  43 
enabled  the  Govemor-Qeneral  of  India  in  Council  to  make 
Regulations ;  and  Act  XII.  of  1844,  amended  by  Acts  XXVII.  of 
1848,  and  XXXIII.  of  1858  provided  for  the  Indian  Navy  a  law 
similar  to  that  which  governs  the  Queen's  Navy.  All  these  laws 
relating  to  the  Navy  are  strictly  laws  for  enforcing  discipline  only ; 
they  make  no  provision  for  the  punishment  of  crimes  committed 
by  sailors  in  the  naval  service.  Such  crimes  will  therefore,  when 
committed  in  India,  be  punishable  under  this  Code. 

The  present  Chapter  punishes  persons  who,  not  being  them- 
selves soldiers  or  sailors,  abet  soldiers  and  sailors  in  committing 
gross  breaches  of  discipline.  The  laws  which  govern  the 
Army  and  Navy  cannot  generally  reach  such  offenders :  and  the 
other  provisions  of  this  Code  do  not  reach  them,  because  the 
act  of  insubordination,  &c,,  which  they  abet,  however  grave 
as  a  breach  of  military  discipline,  may  be  no  offence,  or  a 
very  trivial  one,  under  this  Code.     Hence  the  necessity  of  this 


112  CHAPTER  VII. 

Chapter  which  punishes,  but  not  with  the  severity  of  military 
Penal  law,  the  abettors  of  soldiers  and  sailors  in  certain  breach- 
es of  discipline* 

131.  Whoever  abets  the  committing  of  mutiny  by 

an  officer,  soldier,  or  sailor,  in 

Abetting    mutiny    op    at-       ,-%  a  t^t  j?     xi 

tempting  to  seduoe  a  soldier  the  Armv  Or  NaVV  01  the 
or  sailor  from  his  duty.  r\  ±j.  j.      x  j       -. 

Queen,  or  attempts  to  seduce 
any  such  officer,  soldier,  or  sailor  from  his  allegiance 
or  his  duty,  shall  be  punished  with  transportation  for 
life,  or  with  imprisonment  of  either  description  for  a 
term  which  may  extend  to  ten  years  and  shall  also  be 
liable  to  fine. 

The  first  part  of  this  Section  relates  to  the  oflfence  of  abet- 
ting mutiny.  The  oflTence  contemplated  is  an  abetment  which 
is  not  followed  by  actual  mutiny, — or  which,  supposing  actual 
mutiny  follows,  is  not  the  cause  of  that  mutiny. 

The  offence  of  mutiny  consists  in  extreme  insubordination,  as  if 
a  soldier  resists  by  force,  or  if  a  number  of  soldiers  rise  against 
or  oppose  their  military  superiors,  such  acts  proceeding  from 
alleged  or  pretended  grievances  of  a  military  nature..  Acts  of 
a  riotous  nature  directed  against  the  Government  or  Civil 
Authorities  rather  than  against  military  superiors  seem  also 
to  constitute  mutiny.  A  charge  brought  under  this  Section  must 
be  supported  by  proof  of  the  instigation  or  other  mode  of 
abetment  (see  Section  107),  and  of  its  object,  i.  e.  to  excite  to 
mutiny. 

The  latter  clause  of  the  Section,  which  is  founded  on  a  corre- 
sponding provision  of  an  English  statute,  the  37  Geo.  3  c.  70 
(made  perpetual  by  57  Geo.  3  c.  7,  and  amended  as  to  punishment 
by  1  Vict.  c.  91)  relates  to  attempts  to  seduce  soldiers  from  their 
duty.  It  is  not  easy  to  give  any  such  interpretation  of  this  gene- 
ral and  vague  expression  as  will  assist  the  reader :  but  the  rare 
cases  which  it  governs,  will  probably  present  little  difficulty 
in  applying  the  law. 

132.  Whoever  abets  the  committing  of  mutiny 


OFFENCES   RELATING   TO  THE   ARMY.  113 

.^  ^      ,  ,     ^,     ,,    ,     by  an  ofllcer,  soldier,  or  sailor, 

Abetment  of  mutiny,  if  mil-      .  "^    . ,         .  twt  /»  xi> 

tiny  is  oommitted  in  oonie-  in  the  ArmV  Or  W  aVV  01  the 
qoenoe  thereof.  ^^  i     ^i       -i?  x-  i. 

Queen,  shall,  if  mutiny  be 
oonunitted  in  consequence  of  that  abetment,  be  pun- 
ished with  death  or  with  transportation  for  life,  or  im- 
prisonment of  either  description  for  a  term  which  may 
extend  to  ten  years,  and  shall  also  be  liable  to  fine. 

The  offence  here  punished  is  abetment  when  actual  mutiny 
is  the  consequence  of  it.  The  evidence  should  show  that 
mutiny  has  been  committed  and  the  previous  abetment*  The 
words  '^  committed  in  consequence,  &c.,'^  have  been  explained, 
see  Section  109,  Explan*  It  seems  that  that  explanation,  though 
not  one  of  the  General  Explanations,  is  applicable  to  this  and 
similar  Sections  making  special  provision  for  abetment. 

The  offence  of  circulating  false  rumours  with  intent  to  cause 
any  oflScer,  soldier  or  sailor  in  the  Army  or  Navy  of  the  Queen 
to  mutiny  is  made  punishable  by  the  505th  Section. 

133.    Whoever  abets  an  assault  by  an  officer,  soldier. 
Abetment  of  an  assault  by  a    OT  sailor,  in  the  Army  or  Navy 
rt2?l>fflSfr^2nS?thi%SSS:    of  the  Queen,  on  any  superior 
ttonofhisoiiioe.  officcr,  being  in  the  execution 

of  his  office,  shall  be  punished  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  fine. 

The  very  comprehensive  definition  of  assault  given  in  Sec- 
tion 351  may  be  referred  to,  in  order  to  ascertain  the  offence^ 
(as  defined  by  this  Code)  of  which  the  abetment  is  made 
punishable  by  this  and  the  following  Section.  The  assault 
here  meant  may  probably  be  that  which  the  Mutiny  Acts  and 
Articles  of  War  provide  against,  namely  the  striking  a  supe- 
rior officer,  or  using  or  o£fering  any  violence  against  him  when 
he  is  on  duty.  The  words  '^  any  superior  officer*'  of  course 
exclude  from  this  provision  such  assaults  as  one  private  soldier 
may  commit  on  another.  But  they  clearly  comprehend  all 
officers  whether  commissioned  or  non-commissioned, — for  a 
non-commissioned  officer  is  a  superior  officer  in  relation  to  a 

Q 


114  CHAPTER  VII. 

ptirate  soldier,  as  a  captain  is  to  a  subaltern,  and  the  com- 
manding officer  of  a  Regiment  to  all  the  officers  and  men 
nnder  his  command. 

It  is  an  inseparable  part  of  this  offence,  that  the  offi- 
cer should  be  assaulted  while  in  the  execution  of  his  office. 
An  officer  is  in  the  execution  of  his  office  not  only  when  he 
is  performing  a  prescribed  duty,  but  also  when  he  is  discharg- 
ing a  duty  arising  out  of  the  exigency  of  the  moment.  Thus 
an  officer  seeing  a  soldier  out  of  quarters  after-hours,  or  impro- 
perly dressed  or  drunk  in  the  streets  of  a  town,  or  transgres- 
sing any  order  or  usage  of  the  service,  would  at  all  times  be  in 
the  execution  of  his  duty,  and  therefore  of  his  office,  in  order- 
ing the  soldier  to  his  barracks  or  directing  such  other  measures 
as  might  be  necessary.  It  must,  howeyer,  be  remembered  that 
an  important  ingredient  in  the  soldier^s  offence  is,  that  he 
offers  violence  knowingly  to  his  officer.  If  he  strikes  a  person 
whom  he  or  his  abettor  really  does  not  know  to  be  an  officer,  the 
offence  of  abetment  which  is  here  made  punishable  so  severely, 
has  not  been  committed  by  the  person  who  abets  the  blow. 

134.  Whoever  abets  an  assault  by  an  officer,  sol- 
Abetment  of  Buoh  assault,     di^r,  or  sailor,  in  the  Army  or 

if  the  assault  is  committed.       jf^^y  ^f  ^ho  Queen,  on  any 

superior  officer  being  in  the  execution  of  his  office, 
shall,  if  such  assault  be  committed  in  consequence  of 
that  abetment,  be  punished  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to 
seyen  years,  and  shall  also  be  liable  to  fine. 

See  the  notes  to  the  two  preceding  Sections.  An  enhanced 
punishment  is  given,  if  the  assault  is  actually  committed. 

135.  Whoever  abets  the  desertion  of  any  officer. 
Abetment  of  the  desertion    soldicr,  or  sailor,  in  the  Army 

ofatoidieropwuor.  ^  Navy  of  the  Queen,  shall 

be  punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  two  years,  or  with 
fine,  or  with  both. 


OFFENCES   RELATING  TO  THE  AKMY.  115 

The  offence  of  desertion  from  the  Army  or  Navy  consists 
in  this^  that  the  officer^  soldier^  or  sailor  is  unlawfully  absent 
from  his  duty^  and  has  no  intention  of  returning  to  it.  Whether 
he  departs  without  leave  from  his  regiment^  or  whether^  having 
leave  of  absence,  he  overstays  his  leave^  if  his  intention  is  not 
to  return  to  his  duty  and  his  regiment^  he  is  a  deserter.  This 
intention  not  to  return  is  essential  to  desertion^  and  without 
it,  the  offence  becomes  one  which  is  known  in  military  law  as 
*'  absence  without  leave,''  an  offence  of  a  much  lighter  kind. 
The  Section  it  seems,  punishes  the  abetment  of  desertion  only 
when  the  desertion  actually  takes  place.  The  provision  of  the 
English  statute  which  is  quoted  in  the  note  to  Section  136,  may 
also  be  referred  to  here. 

136.    Whoeyer,   except    as  hereinafter  excepted, 

Harboorlns  a  deserter.  knOWillg   Or   having   rcaSOn  tO 

believe  that  an  oflElcer,  soldier,  or  sailor,  in  the  Army 
or  Navy  of  the  Queen,  has  deserted,  harbours  such 
officer,  soldier,  or  sailor,  shall  be  punished  with  im- 
prisonment  of  either  description  for  a  term  which  may 
extend  to  two  years,  or  with  fine,  or  both. 

Exception.  This  provision  does  not  extend  to  the 
case  in  which  the  harbour  is  given  by  a  wife  to  her 
husband. 

This  provision  must  not  be  held  to  affect  the  jurisdiction 
which  is  usually  given  by  the  Annual  Mutiny  Act  to  all  Courts 
of  criminal  jurisdiction  in  Her  Majesty^s  dominions  to  punish 
by  fine  or  imprisonment,  or  both,  as  a  misdemeanor,  the  offence 
there  defined  in  the  following  terms. — 

''  Any  person  who  shall  directly  or  indirectly  procure  any  sol- 
dier to  desert  or  attempt  to  procure  or  persuade  any  soldier  to 
desert,  any  person  who  knowing  that  any  soldier  is  about  to 
desert  shall  aid  or  assist  him  in  deserting,  or  knowing  any  soldier 
to  be  a  deserter,  shall  conceal  such  deserter,  or  aid  or  assist  such 
deserter  in  concealing  himself,  or  aid  or  assist  in  his  rescue.'^ 
Q2 


116  CHAPTEB  VII. 

137.  The  master  or  person  in  charge  of  a  mer- 

chant   vessel,    on    board    of 

Deserter  concealed  on  board          i.»   i.  j  ±        i»  ^-n 

merchant  vessel  tbrongh  nag-      WulCIl    anv    CLeserter   JXOm   the 
ligence  of  master.  * twt  i?  xi.       r\ 

Army  or  Navy  of  the  Queen 
is  concealed,  shall,  though  ignorant  of  such  conceal* 
ment,  be  liable  to  a  penalty  not  exceeding  five  hun- 
dred Rupees,  if  he  might  have  known  of  such  conceal- 
ment but  for  some  neglect  of  his  duty  as  such  master 
or  person  in  charge,  or  but  for  some  want  of  discipline 
on  board  of  the  vessel. 

This  stringent  provision,  which  was  not  in  the  Code  as  origin- 
ally prepared,  is  taken  from  an  Act  directed  against  the  mischief 
and  loss  to  the  Government  occasioned  by  the  encouragement 
given  to  desertion  by  the  Masters  of  Merchant  vessels.  The  Sec- 
tion enacts  as  a  part  of  the  definition  of  an  o£fence  what,  at  the 
most,  is  only  evidence  of  an  offence.  When  a  deserter  is  found 
*'  concealed^^  on  board  a  vessel,  it  is  not  unreasonable  to  pre- 
sume that  the  Master,  or  person  in  charge,  knows  that  he  is 
there,  and  that  he  harbours  the  deserter.  If  the  Master  can 
satisfactorily  rebut  this  presumption  by  proving  that  he  really 
knew  nothing  of  the  matter,  it  seems  just  to  allow  him  to  do 
so ;  but,  according  to  this  provision,  bis  ignorance,  however 
honest,  will  not  save  him  if  there  has  been  ''  neglect  of  duty^' 
or ''  want  of  discipline'*  on  board, — vague  expressions,  the  proof 
or  disproof  of  which  are  equally  difficult. 

138,  Whoever  abets  what  he  knows  to  be  an  act  of 
A.batmentofaotofi»«ubop.    insubordiuation  by  an  oflElcer, 

dinationbya.oidiepop.aU6r.     goldicr,  or  sailor,  in  the  Army 

or  Navy  of  the  Queen,  shall,  if  such  act  of  insubordi- 
nation be  committed  in  consequence  of  that  abetment, 
be  punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  six  months,  or  with 
fine,  or  with  both. 

Provision  is  only  made  for  those  cases  of  abetment  which 
are  actually  followed  by  acts  of  insubordination.  In  the 
present  Section,  it  is  expressed  as  part  of  the  definition 
of  the  offence  that  the  abettor  knows  the   quality  of  the 


OFFENCES  BELATING  TO  THE  ARMY.  117 

act  abetted^  that  is^  he  knows  it  to  be  an  act  of  insabordina- 
tion.  The  expression  '^  act  of  insubordination^^  is  not^  as  it 
appears^  used  in  the  Mutiny  Acts  or  in  the  Articles  of  War,  and 
it  seems  to  have  no  definite  meaning.  Conduct  of  a  like  nature 
with  that  which,  when  carried  to  an  actual  resistance  to  superior 
military  authority,  amounts  to  mutiny,  must,  when  not  carried 
to  such  a  length,  be  held  to  be  ''insubordinate/^  Any 
wilful  breach  of  discipline  by  a  soldier  or  sailor  will  con- 
stitute an  act  of  insubordination  within  the  meaning  of  this 
Clause. 

139.  No  person  subject  to  any  Articles  of  War 
»u  ^  ♦  A-/i       for  the  Army  or  Navy  of  the 

Persons  sul^eot  to  Articles       ^  ^  •^  %      /•  i 

of  ww  not  punishable  nncteir     Queen,  or  lor  any  part  of  such 

Army  or  Navy,  is  subject  to 
punishment  under  this  Code  for  any  of  the  offences 
defined  in  this  Chapter. 

The  remarks  already  made,  sufficiently  explain  under  what 
laws  such  persons  are  subject  to  punishment. 

140.  Whoever,  not  being  a  soldier  in  the  MiKtary 
Wearing  the  dress  of  a  sol-    OT  Naval  scrvice  of  the  Quccn, 

^^^'  wears  any  garb  or  carries  any 

token  resembling  any  garb  or  token  used  by  such  a 
soldier,  with  the  intention  that  it  may  be  believed  that 
he  is  such  a  soldier,  shall  be  punished  with  imprison- 
ment of  either  description  for  a  term  which  may  ex- 
tend to  three  months,  or  with  fine  which  may  extend 
to  five  hundred  Bupees,  or  with  both.* 

This  Section,  assuming  that  soldiers  only  and  not  sailors 
wear  a  distinguishing  dress,  accoutrements,  &c.,  provides  a 
punishment  for  those  who  personate  soldiers.  No  fraudulent 
intention  is  made  a  part  of  the  definition.  An  innocent  as- 
sumption of  this  character,  if  it  must  be  deemed  an  offence,  is 


•  The  oflTence  of  purchasing,  &a,  armfl,  ammtmition,  cloth,  Military  accoutre- 
ments, forage,  ^,,  from  a  soldier,  is  ponishable  by  the  Annual  Mutiny  Act. 


118  CHAPTER  VIII. 

one  which  will  probably  be  thought  deserving  of  a  lenient 
sentence.  A  Section  to  the  effect  mentioned  in  the  note  to  p. 
117  will  be  foand  in  the  Annual  Mutiny  Act. 


Chapter  VIII. 

OP  OFFENCES  AGAINST  THE  PUBLIC  TEAN- 
QUILLITY. 


These  offences  hold  a  middle  place  between  State  offences  on 
the  one  hand^  and  crimes  against  person  and  property  on  the 
other.  Many  of  the  offences  made  punishable  by  other  Chap* 
ters  of  the  Code  involve  in  their  commission  a  disturbance  of 
the  public  peace*  But  the  present  Chapter  punishes  especially 
unlawful  assemblies  of  persons  who^  whether  they  assemble 
tumultuously  or  otherwise,  have  a  common  unlawful  purpose  in 
their  minds,  the  execution  of  which  will  disturb  public  order 
and  excite  alarm. 

The  essence  of  these  offences  is  the  unlawful  assembly. 
This  is  more  or  less  aggravated  by  other  circumstances  which 
attend  or  follow  it,— as  the  being  armed,  the  making  prepara* 
tions  to  execute  the  common  unlawful  object,  or  the  actual  exe« 
cution  of  such  object.  But  there  must  be  an  unlawful  assembly. 
Merely  conspiring  together,  by  writing  or  other  means  of  cor* 
respondence,  without  any  meeting,  is  not  therefore  the  offence 
hereby  made  punishable. 

The  Chapter  of  General  Exceptions  should  be  carefully  borne 
in  mind,  especially  the  exceptions  concerning  acts  done  by  the 
direction  of  public  servants,  or  in  the  exercise  of  the  right  of 
private  defence,  &c.  A  gathering  of  persons  for  objects  such 
as  those  contemplated  by  the  above  exceptions  would  of  course 
not  be  unlawful. 


OFFENCES  AGAINST  PUBLIC  TRANQUILLITY.        119 

lil.     *An  assembly  of  five  or  more  persons  is  de- 
uniawftii assembly.  signaled    as     an     "unlawful 

assembly,"  if  tbe  common  object  of  the  persons  com- 
posing that  assembly,  is — 

First.  To  overawe  by  criminal  force,  or  show  of 
criminal  force,  the  Legislative  or  Executive  'Govern- 
ment of  India,  or  the  Government  of  any  Presidency, 
or  any  Lieutenant-Governor,  or  any  Public  Servant 
in  the  exercise  of  the  lawful  power  of  such  Public 
Servant ;  or 

Second.  To  resist  the  execution  of  any  law,  or  of 
any  legal  process ;  or 

Third.  To  commit  any  mischief  or  criminal  tres- 
pass, or  other  oflfence ;  or 

Fourth.  By  means  of  criminal  force,  or  show  of 
criminal  force,  to  any  person,  to  take  or  obtain  pos- 
session of  any  property,  or  to  deprive  any  person  of 
the  enjoyment  of  a  right  of  way,  or  of  the  use  of 
water  or  other  incorporeal  right  of  which  he  is  in 
possession  or  enjoyment,  or  to  enforce  any  right  or 
supposed  right ;  or 

Fifth.  By  means  of  criminal  force,  or  show  of 
criminal  force,  to  compel  any  person  to  do  what  he 
is  not  legally  bound  to  do,  or  to  omit  to  do  what  he 
is  legally  entitled  to  do. 

Flxplanation.  An  assembly  which  was  not  unlaw- 
ful when  it  assembled,  may  subsequently  become  an 
unlawful  assembly. 

"The  common  object  of  the  persons  composing  that  assembly^' 
&c.  The  five  or  more  persons  met  together  must  have  in  view  a 
common  unlawful  object  of  the  description  specified.  Whether 
the  object  is  in  their  minds  when  they  come  together,  or  whether 
it  occurs  to  them  afterwards,  is  not  material.  But  it  is  necessary 
that  the  object  should  be  common  to  the  persons  who  compose 
the  assembly,  that  is,  that  they  should  all  be  aware  of  it  and  con- 

*  By  an  error  of  the  press  some  copies  of  the  Code  have  "  An  assembly  or 
fire  persons"  4c. 


120  CHAPTER  VITI. 

cur  in  it.  It  seems  also  that  there  must  be  some  present  and 
immediate  purpose  of  carrying  into  effect  the  common  object ; 
and  that  a  meeting  for  deliberation  only,  and  to  arrange  plans 
for  future  action,  is  not  an  *'  unlawful  assembly/' 

^*  First.  To  overawe'^  &c.  A  person  kept  by  superior 
influence  in  awe,  so  that  he  fears  to  do  that  which  he  has  a 
mind  and  will  to  do,  and  which  the  law  empowers  him  to  do, 
is  overawed.  But  the  common  object  which  makes  an  assembly 
"  unlawful^'  is  an  intent  to  overawe,  by  or  by  show  of  crimi- 
nal force.  (See  Sections  849,  350.)  The  Court  must  determine 
upon  view  of  the  whole  facts,  not  whether  a  public  servant  has 
in  fact  been  overawed,  but  whether  the  assembly  had  that 
end  in  their  minds  as  the  common  object  of  their  meeting. 

The  Second  and  Third  objects  do  not  require  to  be  noticed. 
Mischief  is  defined  by  Section  425,  Criminal  Trespass  by  Sec- 
tion 441.  The  word  "  offence^'  means  a  thing  made  punish- 
able by  this  Code.     (Section  40.) 

Fourth  i^d  Fifth.  ''  By  means  of  criminal  force''  Ac. 
Here,  as  in  the  first  instance,  a  necessary  part  of  the  common 
object  is  that  it  should  contemplate^'*  force  or  show  of  force," 
as  the  means  to  be  used  to  carry  the  object  into  effect.  The 
cases  coming  under  these  two  heads  are  not  necessarily,  and 
apart  from  the  use  of  force,  of  a  criminal  nature  ;  for  the  right 
may  actually  be  on  the  side  of  those,  or  some  of  those,  who 
compose  the  unlawful  assembly.  It  is  the  use  offeree  or  show 
of  force  in  the  attempt  to  recover  what  may  be  justly  their 
property  that  brings  the  persons  assembled  within  the  definition. 

The  greater  part  of  the  fourth  clause  relates  to  the  forcible 
dispossession  of  property.  Moveable  property  seems  to  come 
within  the  terms  used,  and  may  perhaps  be  within  the  contem- 
plation of  the  clause.  What  shall  amount  to  possession  of  pro- 
perty whether  moveable  or  immoveable,  is  a  matter  which  the 
civil  law  must  determine.  For  the  present  purpose,  it  will  not 
be  difficult  to  determine  what  is  that  possession  of  land  which 
it  is  the  common  object  of  an  unlawful  assembly  to  take  or 


OFFENCES  AGAINST  PUBLIC  TBANQTJILLITY.     121 

obtain.  The  first  and  usual  case  is  where  the  common  purpose 
is  to  take  possession  of  property  by  dispossessing  the  present 
actual  occupant.  Where  the  property  is  in  the  actual  posses- 
sion of  no  person^  the  possession  being  vacant^ — as  in  the  case 
of  a  deserted  or  unoccupied  house^  or  a  newly  formed  chur 
upon  which  no  acts  of  ownership  have  been  exercised^  and 
which^  from  its  position  does  not  become  by  law  annexed  to 
any  particular  property^ — an  assembly  of  persons  whose  com« 
mon  object  is  to  obtain  possession  by  force  or  show  of  force 
to  be  used  against  others  who  are  prepared  to  resist  them^  is 
unlawful  whether  the  property  rightfully  belongs  to  the  persona 
or  any  of  the  persons  assembled  or  not. 

''  Or  to  deprive,  Ac.''  Property  is  frequently  subject  to  certain 
rights  or  privileges  which  may  be  exercised  over  it  by  those 
who  have  lands  adjacent  to  it  and  by  others,  such  as  rights  of 
way,  rights  of  common  or  pasturage,  rights  of  fishing,  &c.  Such 
rights  are  known  to  the  English  law  as  ''  incorporeal''  rights* 
And  as  they  consist,  not  in  the  actual  possession  of  tangible 
property,  but  in  the  enjoyment  or  use  of  the  way  or  other  right, 
the  word  possession  as  applied  to  them  means  only  the  undis-« 
turbed  use  and  exercise  of  the  privilege.  An  assembly,  with 
the  common  intent  forcibly  to  interfere  with  or  prevent  the 
enjoyment  of  the  right,  is  unlawful.  So  likewise  is  it,  where 
the  common  purpose  is  to  enforce  such  a  privilege  on  behalf  of 
the  person  who  has  or  claims  it.  Thus,  A  having  enclosed 
certain  land,  B  and  four  or  more  persons  assemble  with  a 
common  intent  to  enforce  a  right  or  supposed  right  claimed  by 
B,  that  his  cattle  should  pass  over  the  land  enclosed,  to  be 
watered.  This  is  an  unlawful  assembly,  although  A  may  have 
unjustly  deprived  B  of  his  lawful  right  by  the  enclosure  of  the 
land. 

The  words  "any  right  or  supposed  right'*  may  also  extend 
to  a  right  unconnected  with  immoveable  property,  though  they 
seem  from  the  context  to  be  meant  especially  to  include  rights 
connected  with  land. 


122  CHAMEK  vin. 

The  fifth  clause  seems  comprehensive  enough  to  apply  to  all 
the  rights  a  man  can  possess,  whether  they  concern  the  enjoy- 
ment of  property  or  not.  Whatever  thing  a  man  may  lawfully 
do  or  omit  to  do  at  his  choice,  the  law  will  not  allow  that  he  shall 
be  compelled  to  do  or  prevented  doing  that  thing  by  force 
or  show  of  force.  And  an  assembly  of  those  who  intend  so  to 
compel  or  prevent  him  is  unlawful,  whether  the  object  concerns 
land  («.  g.  to  compel  a  person  to  sow  or  not  to  sow  his  land  with 
a  particular  crop),  or  is  distinct  from  the  land,  (e.  g.  to  prevent  a 
religious  procession,  or  to  deter  a  person  from  marrying  under 
the  provisions  of  Act  XV,  of  1856,  or  to  compel  a  person  or 
persons  to  go  to  a  new  market  or  to  keep  away  from  an  old  one)* 

142,    Whoever,  being  aware  of  facts  which  render 

Being  a  member  of  an  un-    ^T^J  assembly  an  Unlawful  as. 

lawiw  assembij.  sembly,  intentionally jolus  that 

assembly,  or  continues  in  it,  is  said  to  be  a  member 

of  an  unlawful  assembly* 

The  previous  Section  having  explained  what  an  unlawful 
assembly  is,  this  Section  declares  who  may  be  said  to  be  ^ 
member  of  such  an  assembly.  The  persons  who  meet  together 
may  not  at  first  be  five  in  number  or  may  not  have  when  they 
first  assemble  any  such  "  common  object' '  as  makes  their  meet« 
ing  unlawful.  In  either  case  as  soon  as  five  or  more  are  met  to- 
gether and  entertain  a  common  unlawful  object,  they  constitute 
an  unlawM  assembly.  And  as  soon  as  other  persons,  whethec 
present  from  the  beginning  or  afterwards  joining  the  assembly, 
become  informed  of  the  common  object  and  adhere  to  it  {'^  in- 
tentionally join"  &c.,)  they  also  are  members  of  an  unlawful 


143.    Whoever  is  a  member  of  an  unlawful  assem- 

Pimishment.  bly,    shall  be  punished   with 

imprisonment  of  either  description  for  a  term  which 

may  extend  to  six  months,  or  with  fine,   or  with 

both. 


OFFENCES  AGAINST  PUBLIC  TRANQUILLITY.      123 

There  are  several  degrees  of  criminality  in  the  oflfencea 
subsequently  made  punishable,  but  the  point  of  the  offence  in 
each  case  is  that  which  is  here  made  punishable,  viz.  the  unlaw- 
ful assembly. 

111.    Whoever,  being  armed  with  any  deadly  wea- 
,  _  ^ ,  pon,  or  with  any  thing  which, 

Joining  an  unlawful  assem-      ^       j  o>      a* 

bflT  armed  with  any  deadly      USecl  aS    a    Weapon    01    Offcnce, 

^^*^^^  is  likely  to  cause  death,  is  a 

member  of  an  unlawful  assembly,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  tern^ 
which  may  extend  to  two  years,  or  with  fine,  or  with 
both. 

The  risk  to  the  public  tranquillity — and  therefore  the  offence,' 
— is  aggravated  by  the  intention  of  using  force  evinced  by  car- 
rying arras.  ''  Weapon  of  offence,'*  i.  e,  a  weapon  which  under 
present  circumstances  and  at  the  present  tims  (during  the  ex- 
istence of  the  unlawful  assembly),  is  an  offensive  weapon, — not- 
withstanding that  it  might  be  otherwise  at  a  different  time  and 
place.     The  occasion  and  the  persons  must  determine  this. 

145,  Whoever  joins  or  continues  in  an  unlawful 

Joining  or  continuing  in  an      aSSCmbly,  kuowiug    that    SUCh 

^Tt'tolSi^^iiSSSdSS  unlawful  assembly  has  been 
to  disperse.  Commanded    in    the    manner 

prescribed  by  law  to  disperse,  shall  be  punished  with 
imprisonment  of  either  description,  for  a  term  which 
may  extend  to  two  years,  or  with  fine,  or  with  both. ; 

If  the  offender  still  resolves,  in  defiance  of  this  warning,  to 
persevere  in  the  commission  of  an  offence,  he  aggravates  his 
crime  and  incurs  a  more  severe  punishment.  The  mode  of 
giving  this  warning  seems  to  be  left  for  future  distinct  legis- 
lation. 

146.  Whenever  force  or  violence  is  used  by  an 

unlawful  assembly,  or  by  any 

Force  used  by  one  member  ■•  j  i  /»     • 

in ,  prosecution  of  oommon  member  tncreoi,  m  prosecu* 
^^^^^\  tion^of  the  common  object  of 

E   2 


124  CHAPTEB  vni. 

Buch  assembly,  every  member  of  such  assembly  is 
guilty  of  the  offence  of  rioting. 

The  unlawful  assembly  having  moved  towards  the  execution 
of  its  common  object^  and  having  used  force^  has  committed  the 
higher  o£fence  of  rioting.  It  will  be  noticed  that  the  actual  use 
of  force^  and  not  merely  a  show  of  force,  is  necessary,  and  that 
the  force  must  be  in  the  prosecution  of  the  common  object.  Aad 
in  this  case  whether  only  one,  or  more  than  one,  of  the  persons 
assembled  use  the  force,  the  penal  consequences  apply  equally 
to  all.  It  will  be  otherwise,  however,  if  the  force  or  violence  is 
used  for  a  distinct  purpose, — as  if  it  consist  of  a  mere  affray  or 
assault  upon  each  other,  or  upon  bystanders,  by  some  members 
of  the  assembly. 

It  has  been  thought  necessary,  in  a  subsequent  Chapter  of 
offences  affecting  the  Human  Body,  to  explain  what  is  meant 
by  the  words  *'  to  use  force*'  (Section  849) .  But  that  explana- 
tion is  merely  for  the  purpose  of  defining  the  offences  of  Crimi* 
nal  Force,  and  Assault :  it  is  not  a  General  Explanation  like 
those  given  in  the  2nd  Chapter,  nor  is  it,  of  itself,  a  definitiou 
of  an  offence.  The  words  *'  use  force,*'  in  the  present  Section, 
must  therefore,  it  seems,  be  construed  without  reference  to  the 
explanation  given  in  Section  849. 

147.  Whoever  is  guilty  of  rioting  shall  be  punish- 
Punishment  for  riotinff.         ed  with  imprisoimient  of  either 

description,  for  a  term  which  may  extend  to  two 
years,  or  with  fine,  or  with  both. 

148.  Whoever  is  guilty  of  rioting,  being  armed 

Bioting,  anned  with  adead-      ^th  a  deadly  WOapOU,  Or  With 

ly  weapon,  ^^y  thing  which,  used  as  a 

weapon  of  offence,  is  likely  to  cause  death,  shall  be 
punished  with  imprisojunent  of  either  description,  for 
a  term  which  may  extend  to  three  years,  or  with  fine, 
or  with  both. 

149.  If  an  offence  is  committed  by  any  member 
^Bvenr  member  of  tmirnuw-    of  an  imlawful  asscmblv  in 

All  assembly  to  be  deemed  . .  a     ji  ^ 

suUty  of  any  offimoe  commit-  prOSCCUtlOIL  Of  the  COmmon 
ted  in  prosecution  of  common      '^^•j,       i*iij.  ii 

pwect.  object  of  that  assembly,  or 


OPPENCES  AGAINST  PUBLIC  TEANQUILLITT.     125 

TOch  as  the  members  of  that  assembly  knew  to  be 
likely  to  be  committed  in  prosecution  of  that  object, 
every  person  who,  at  the  time  of  the  committing  of 
that  ojBfence,  is  a  member  of  the  same  assembly,  is 
gmlty  of  that  ojffence. 

Yiolence  used  by  one  member  of  an  nnlawful  assembly,  in 
prosecution  of  the  common  object  makes  all  the  members 
rioters  (Section  146).  In  like  manner,  any  o£fence  which  he 
commits  in  prosecution  of  the  common  object  becomes  the 
ofience  of  all.  And  farther,  if  he  commit  an  offence  which, 
although  it  cannot  be  said  to  be  committed  in  prosecuting  the 
common  object,  is  yet  such  an  offence  as  was  likely  to  be  com- 
mitted, all  are  deemed  to  be  participators  in  his  guilt. 

The  nature  and  object  of  the  assembly  must  determine  what 
acts  done  and  what  offences  committed  by  any  one  of  its  mem- 
bers become,  under  this  Section,  the  acts  and  offences  of  the 
whole  body.  Minor  offences  against  person  and  property  are  the 
common  and  natural  consequences  of  a  tumultuous  gathering 
of  persons  with  evil  intentions.  And  grave  offences  of  a  like 
nature  may  equally  be  the  probable  result  where  the  common 
object  is  one  which  implies  violence.  But  there  is  a  limitation  to 
this  law  extending  to  many  persons  the  actual  guilt  of  one,  which 
seems  reasonable  and  consistent  with  the  terms  in  which  the 
Section  is  expressed,  viz.  that  the  offence,  if  wholly  beside  the 
common  object,  is  not  to  be  imputed  to  the  whole  assembly. 

150.    Whoever  hires  or  engages,  or  employs,  or 
„,^  ,  .      ^^,       promotes,  or  connives  at  the 

Hiring  or  ooimiTinff  at  hir-      t  .   .  ' 

fiwftdSSSmSi^  Joitt  an  i»-    hirmg,    engagement,    or  em- 
****"^  ^*  ployment,  of  any  person  to  join 

or  become  a  member  of  any  unlawful  assembly,  shall 
be  punishable  as  a  member  of  such  imlawf  ul  assembly, 
and  for  any  oflfence  which  may  be  committed  by  any 
such  person  as  a  member  of  such  unlawful  assembly, 
in  pursuance  of  such  hiring,  engagement,  or  employ- 
ment, in  the  same  manner  as  if  he  had  been  a  member 
of  such  unlawf]il  assembly^  or  himself  had  committed 
such  offence. 


126  CHAPTER  VIII. 

Aflfrays  attended  by  much  violence,  and  occasionally  ending 
in  death,  are  coramitted  in  some  parts  of  India  by  persons  either 
hired  or  employed  for  such  work  alone,  or  who  are  not  or  may 
not  be  ordinarily  retainers  or  labourers  in  the  service  of  the 
persons  hiring  them.  The  object  of  this  Section  seems  to  be  to 
bring  within  reach  of  the  law,  those  who  are  really  the  origina- 
tors and  instigators  of  the  oflfences  committed  by  such  person?. 
The  ordinary  law  of  abetment  might  be  snjEcient  to  punish 
those  who,  by  hiring  or  engaging  others,instigate  them  to  join  an 
unlawful  assembly.  But  if  the  prime  agent  keeps  aloof,  and  the 
work  of  hiring,  although  known  to  him,  is  left  entirely  to  his 
managers  or  servants,  \ie  will  probably  succeed  in  evading  the 
ordinary  law.  The  terms  of  this  Section  therefore  extend  not 
only  to  acts  of  instigation  by  the  master,  but  to  acts  of  instiga- 
tion when  done  by  others  (his  agents,)  and  knowingly  permitted, 
or  connivied  at,  by  him. 

To  support  a  charge  under  this  Secti  on,  there  must  be  proof 
— (1.)  of  an  unlawful  assembly ;  (2.)  of  an  oflfence  (if  an  of- 
fence was  committed  by  the  members  of  that  assembly);  (3.) 
of  the  complicity,  by  hiring,  connivance  or  otherwise,  of  the 
person  charged.  Direct  evidence  of  hiring,  &c.,  may  not 
often  be  procurable ;  and  it  will  be  still  more  difficult  to  obtain 
such  evidence  where  the  charge  is  one  of  promoting  the  hiring 
or  conniving  at  it.  The  relation  of  tljp  parties,  their  conduct, 
and  the  circumstances  generally,  must  furnish  grounds  of  pre- 
sumptive proof  in  such  cases. 

151.     Whoever  knowingly  joins  or  continues   in 

Knowingly  joining  or  oonti-    any  assembljT  of  flve  or  more 

2rS?r^p^L'liT±??thSS    persons  likely  to  cause  a  dis- 

been  commanded  to  diiperse.      turbanCC  of  the    public    pcaCC, 

after  such  assembly  has  been  lawfully  commanded 
to  disperse,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to  six 
months,  or  with  fine,  or  with  both. 

Eocplanation.  If  the  assembly  is  an  unlawful 
assembly  within  the  meaning  of  Section  141,  the 
offender  will  be  punishable  under  Section^  145. 


OFFENCES  AGAINST  PUBLIC  TRANQUILLITY.     127 

The  offence  consiats  not  in  any  unlawful  assembly,  for  there 
may  be  none,  but  in  the  disobedience  to  the  mandate  of  the  law, 
which,  under  the  particular  circumstances  indicated  here,  has 
ordered  the  assembly  to  disperse.  Suppose  five  or  more  per- 
sons meet  together  on  a  lawful  occasion  :  a  command  to  them 
to  disperse  would  not  be  a  lawful  command,  and  the  offence, 
here  contemplated  would  not  be  committed.  But  if  the  time 
and  place  of  assembly  make  it  likely  that  a  disturbance  of  the 
public  peace  will  be  caused,  the  disobedience  to  the  command 
to  disperse  constitutes  the  offence  hereby  made  punishable.  If 
two  persons  are  quarrelling  in  a  public  place,  an  assembly  of 
five  or  more,  composed  of  these  persons  and  of  bystanders, 
appears  one  likely  not  only  to  cause  obstruction,  but  a  distur- 
bance of  the  public  peace :  and  knowingly  to  join  or  continue  in 
such  an  assembly  after  the  order  to  disperse,  may  be  an  offence. 

152.    Whoever  assaults  or  threatens  to  assault,  or 

^^    ^,       obstructs  or  attempts  to  ob- 

^licsOTT^t  when  suppress,     struct,  any  puolic  Servant  in 

the  discharge  of  his  duty  as 
such  public  servant,  in  endeavouring  to  disperse  an 
unlawful  assembly,  or  to  suppress  a  riot  or  aflfray,  or 
uses,  or  threatens,  or  attempts  to  use  criminal  force 
to  such  public  servant,  shall  be  punished  with  im- 
prisonment of  either  description,  for  a  term  which  may 
extend  to  three  years,  or  with  fine,  or  with  both. 

The  powers  and  duties  of  public  servants  in  the  suppression 
of  a£Erays,  &c.  are  not  contained  in  this  Code.  They  belong  to 
the  Code  of  Criminal  Procedure  or  to  a  distinct  law. 

The  offence  of  assault  is  defined  by  Section  351.  Knowledge 
of  the  fact  that  the  person  obstructed  is  a  public  servant, 
although  it  is  not  expressed  in  the  definition,  no  doubt  forms 
part  of  this  offence. 

163.  Whoever  malignantly  or  wantonly,  by  doing 

wantonij  giving  provoca-    any  tMug  which    is  illegal, 

tion.  with,  mtent  to  oauM  riot,    giyes  provocatiou  to  any  persou^ 


128  CHAOTER  vni. 

intending  or  knowing  it  to  be  likely  that  such  provo- 
cation will  cause  the  offence  of  rioting  to  be  commit-* 

If  rioting  be  oommitted.  tcd,     shall,     if   the    OffcUCe    of 

rioting  be  committed  in  consequence  of  such  provo- 
cation, be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  one  year, 
or  with  fine,  or  with  both;  and  if  the  offence  of 
If  not  committecL  riotiug  bc  uot  Committed,  with 

imprisonment  of  either  description,  for  a  term  which 
may  extend  to  six  months,  or  with  fine,  or  with  both. 

The  provocation  to  riot  must  be  given  by  an  "  illegal*'  act 
(see  Section  43).  Not  only  must  the  provocation  be  by  an  illegal 
act,  bat  it  must  be  given  wantonly  and  without  excuse  ;  and, 
moreover,  there  must  be  the  intention  to  cause,  or  guilty  know- 
ledge of,  the  probable  consequences.  These  ingredients  being 
present,  the  punishment  varies  according  as  the  probable  con- 
sequences actually  ensue  or  not. 

154.    Whenever  any  unlawful  assembly  or  riot 
^ ,      ...    takes    place,    the    owner    or 

Owner  or  oooupier  of  land  .  -^        «'   .,         ,        , 

on  ijiiloh  «i  unUwlul  aesom-      OCCUpiCr     of     thC     land     Upon 

which  such  unlawful  assenably 
is  heldjOr  such  riot  is  committed,and  anyperson  having 
or  claiming  an  interest  in  such  land,  shall  be  punish- 
able with  fine  not  exceeding  one  thousand  Rupees, 
if  he  or  his  agent  or  manager,  knowing  that  such 
offence  is  being  or  has  been  committed,  or  having 
reason  to  believe  it  is  likely  to  be  committed,  do  not 
give  the  earliest  notice  thereof  in  his  or  their  power 
to  the  principal  officer  at  the  nearest  Police  station^ 
and  do  not,  in  the  case  of  his  or  their  having  reason 
to  believe  that  it  was  about  to  be  committed,  use  all 
lawful  means  in  his  or  their  powOT  to  prevent  it,  and 
in  the  event  of  its  taking  place,  do  not  use  all  lawful 
means  in  his  or  their  power  to  disperse  or  suppress  the 
riot  or  imlawful  assembly. 

Many  duties  of  police  are  by  law  imposed  on  landholders* 
The  present  Section  proceeds  apparently  upon  a  presumption 


OFFENCES  AGAINST  PUBLIC  TRANQUILLITY.     129 

Ibat,  in  addition  to  any  SQch  duty,  the  owner  or  occupier  of 
land  is  cognizant  in  a  peculiar  way  of  the  designs  of  those  who 
assemble  on  his  land^  and  is  able  not  only  to  give  the  police 
notice,  but  also  to  prevent  and  to  disperse  and  suppress  the 
assembly.  It  seems  that  an  absent  and  non-resident  owner 
may  be  made  liable  under  this  Section  for  the  misconduct  of 
his  local  agents. 

The  difficulty  of  proving  the  complicity  of  landholders  and 
others  in  affrays  and  outrages  connected  with  the  occupation 
of  land,  committed  by  hired  agents,  probably  rendered  neces- 
sary the  introduction  into  the  Code  of  the  four  following  Sec- 
tions. It  will  be  noticed  that  circumstances  which  are  in  truth 
only  evidence  (as  reasonable  grounds  for  presuming  a  guilty 
knowledge  or  connivance)  of  an  offence,  become  in  these  Sec- 
tions part  of  the  definition  of  an  offence. 

155.     Whenever  a  riot  is  committed  for  the  benefit 
,.  w.,xx«     *  .       or  on  behalf  of  any  person 

LiabUity     of    person     for  -        .      .,  •^     *        . 

whose  benefit  a  riot  is  oom-      whO  IS  the  OWnor    Or    OCCUpier 

°"  of  any  land  respecting  which 

such  riot  takes  place,  or  who  claims  any  interest  in 
such  land,  or  in  the  subject  of  any  dispute  which  gave 
rise  to  the  riot,  or  who  has  accepted  or  derived  any 
benefit  therefrom,  such  person  shall  he  punishable 
with  fine,  if  he  or  his  agent  or  manager,  having 
reason  to  believe  that  such  riot  was  likely  to  be  com- 
mitted, or  that  the  unlawful  assembly  by  which  such 
riot  was  committed  was  likely  to  be  held,  shall  not 
respectively  use  all  lawful  means  in  his  or  their 
power  to  prevent  such  assembly  or  riot  from  taking 
place,  and  for  suppressing  and  dispersing  the  same. 

See  the  note  to  Section  150.  The  principle  on  which  this 
and  the  foUoif^ng  Section  proceed  is  to  subject  to  fine,  all 
persons  in  whose  interest  an  affray  is  committed  and  the 
agents  of  snch  persons,  unless  it  can  be  shewn  that  they  did 
what  they  lawfully  could  do  to  prevent  the  offence.  The  sub- 
S 


130  CHAPTEE  VIH, 

ject  of  dispute  whether  land,  water,  fisheries,  crops  or  other 
produce  of  land,  markets,  &c ,  or  the  right  to  nse  land,  &c., 
must  be  one  which  the  person  charged  under  this  Section  either 
owns,  or  occupies,  or  lays  claim  to,  whether  he  has  any  lawful 
interest  therein  or  not.  To  support  the  charge  there  must  be 
proof  of  the  riot,  and  of  those  circumstances  which  lead  to  tho 
inference  that  it  was  committed  in  the  interest  (and  therefore, 
presumably,  at  the  instigation)  of  the  person  charged.  It  is 
also  essential  to  establish  by  direct  or  presumptive  proof  a 
knowledge  or  reason  for  belief  that  the  oflfence  would  probably 
be  committed.  Usually,  where  the  means  of  knowing  are  shown 
to  exist,  it  will  not  be  unreasonable  to  presume  knowledge. 

As  to  the  proof  of  the  matters  mentioned  in  the  latter  part 
of  the  Section  ("  the  use  of  all  lawful  means  of  prevention,'* 
&c.)>  it  is  to  be  observed  that  in  general  the  law  supposes  that 
every  person  acts  legally,  and  does  what  he  is  required  by  law 
to  do.  If  therefore  a  man  is  charged  with  omitting  to  do  what 
the  law  enjoins,  he  who  brings  the  charge  must  prove  this 
omission.  But  there  is  another  rule  which  seems  to  be  appli- 
eable  here,  which  requires  that  facts  so  peculiarly  within  the 
knowledge  of  a  person  that  he  can  have  little  or  no  difficulty 
in  being  put  to  the  proof  of  them  shall  be  proved  by  him. 
Probably  therefore  the  accused  will  be  bound  to  undertake 
the  proof  of  the  measures  employed  by  him,  in  order  to 
exempt  himself  from  liability  to  fine  under  this  Section. 

The  amount  of  fine  to  which  the  offender  is,  under  this  Section, 
liable  is  unlimited.  It  will  be  borne  in  mind  that  in  such  cases 
it  is  provided  that  the  sum  to  which  a  fine  may  extend  shall 
not  be  excessive,  (Section  63). 

156.    Whenever  a  riot  is  committed  for  the  benefit 

Liabui*yofagt«to£owner    ^^,  ^?  behalf  of  any  porson 

2'riS?SloSJtSitte^*^  ^^""^^^    ^^^  ^s  ^^^  owner  •  or  occupier 

of  any  land,  respecting  which 
such  riot  takes  place,  or  who  claims  any  interest  in 
such  land,  or  in  the  subject  of  any  dispute  which 


OFFENCES  AGAINST  PUBLIC  TRANQUILLITY.     131 

gaye  rise  to  the  riot,  or  who  has  accepted  or  derived 
any  benefit  therefrom,  the  agent  or  manager  of  such 
person  shall  be  punishable  with  fine,  if  such  agent  or 
manager,  having  reason  to  believe  that  such  riot  was 
likely  to  be  committed,  or  that  the  unlawful  assembly 
by  which  such  riot  was  committed  was  likely  to  be 
held,  shall  not  use  all  lawful  means  in  his  power  to 
prevent  such  riot  or  assembly  from  taking  place  and 
for  suppressing  and  dispersing  the  same. 

See  the  note  to  the  preceding  Section.  The  agent  or  man- 
ager is  here  made  punishable  by  fine  under  the  like  circnra- 
stances.  The  amount  of  the  fine  is  here  also  unlimited.  These 
two  Sections  contain  the  only  instances  throughout  the  Code 
in  which  fine  unlimited  is  the  sole  punishment. 

157.    Whoever  harbours,  receives,  or  assembles, 

Harbonrinf  »erson«  hired      ^    ^^7   hoUSC    Or   prcmisCS   in 
forannnU^^fdfiiMembly.  J^    OCCUpatioU    Or   chargC,    Or 

under  his  control,  any  persons,  knowing  that  such 
persons  have  been  hired,  engaged,  or  employed,  or 
are  about  to  be  hired,  engaged,  or  employed,  to  join 
or  become  members  of  an  unlawful  assembly,  shall 
be  punished  with  imprisonment  of  either  description, 
for  a  term  that  may  extend  to  six  months,  or  with 
fine,  or  with  both. 

See  note  to  Section  150.  The  mere  collection  and  harbour- 
ing of  any  number,  however  small,  of  persons  of  the  class  there 
referred  to,  subjects  the  person  harbouring  them,  to  punishment, 
if  he  knows  the  business  for  which  they  are,  or  are  about  to  be^ 
engaged. 

There  must  be  proof  that  the  persons  haboured  are  employ- 
ed, or  about  to  be  employed,  for  the  purpose  mentioned ;  and 
that  they  are  received  in  some  place  of  reception,  (whether  a 
house,  out-house  or  other  place)  in  the  possession  or  charge  of 
the  accused  person,  or  under  his  control ; — as  if  he  directs,  or 
p^*mits,  his  servants  &c.,  to  receive  them  into  their  houses* 
A  knowledge  of  the  purpose  for  which  the  persons  are  or  are 
s  2 


132  CHAPTER  VIII. 

about  to  be  employed,  must  also  be  sbewn  either  by  direct  proof 
or  otherwise.  The  mere  fact  of  harbouring  such  persons,  con- 
nected with  circumstances  shewing  that  some  right  concerning 
adjacent  land,  &c.,  is  in  violent  dispute,  would  probably  be 
BufBcient  presumptive  evidence. 

158.  Whoever  is  engaged  or  hired,  or  oflters  or 
Being  hired  to  take  part  in    attempts  to  be  engaged  or  hired, 

anunlawftilaBsemblyorriot.       ^q  ^^   qj.  assist    in    doing    any 

of  the  acts  specified  in  Section  141,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  six  months,  or  with  fine,  or 
with  both ;  and  whoever,  being  so  engaged,  or  hired 
Or  to  go  armed.  as  aforesaid,  goes  armed,   or 

engages  or  oflters  to  go  armed,  with  any  deadly  wea- 
pon or  with  any  thing  which,  used  as  a  weapon  of 
oflfence,  is  likely  to  cause  death,  shall  be  punished  with 
imprisonment  of  either  description,  for  a  term  which 
may  extend  to  two  years,  or  with  fine,  or  with  both. 

159.  When  two  or  more  persons,  by  fighting  in 
jijareay.  ^   public   placc,    disturb  the 

public  peace,  they  are  said  to 
"  commit  an  affray.'* 

160.  Whoever  commits  an  aflft^ay,  shall  be  punished 
Punishment  for  committing    ^ith  imprisonment   of  either 

•^•^y-  description,  for  a  term  which 

may  extend  to  one  month,  or  with  fine  which  may 
extend  to  one  hundred  Rupees,  or  with  both. 

An  assault  may  be  committed  in  private  where  it  cannot, 
cause  general  terror  or  alarm ;  it  is  therefore  treated  specially  as 
an  oifence  against  the  person  of  an  individual.  (See  Sections 
350^  351.)  But  an  afiray  is  an  offence  agaist  the  public  peace 
because  it  is  committed  in  a  public  place  and  is  likely  to  cause 
general  alarm  and  disturbance. 

If  a  number  of  persons  meet  together  at  a  fair  or  market,  or 
upon  any  other  lawful  or  innocent  occasion,  and  there  arises 
a  sudden  quarrel  or  fighting,  the  design  of  the  meeting  being 
lawful,  and  the  breach  of  the  peace  happening  without  any 


OFFENCES  BY  PUBLIC  SERVANTS.       133 

preyions  intention, — only  those  persons  who  actually  engage  in 
the  fight  are  guilty  of  an  affray  :  the  other  persons  present 
cannot  be  charged  with  this  or  any  other  offence  under  the 
present  chapter. 

Mere  quarrelsome  words  or  gestures  used  by  two  or  more 
persons,  or  preparations  made  by  them  for  fighting,  will  not 
constitute  an  affray.  To  support  a  charge  of  affray  there  must 
be  proof  of  the  fighting,  and  that  it  was  in  or  adjacent  to  a 
public  road,  street,  &c.,  or  in  some  other  public  place. 


Chapter  IX. 

OF  OFFENCES  BY  OR  RELATING  TO  PUBLIC 
SERVANTS. 


The  line  drawn  between  public  servants  and  the  great  mass 
of  the  community  will  be  found  to  include  in  the  former  class 
a  numerous  body  comprehending  not  only  all  persons  in  the 
Government  service,  but  other  persons  who  come  under  any 
public  obligation  or  any  duty  to  serve  the  public.  See  Sec- 
tion 21. 

Some  of  the  offences  which  this  Chapter  and  those  which 
follow  it,  are  intended  to  reach,  are  of  such  a  description  that 
they  can  be  committed  by  public  servants  alone.  Others 
are  of  a  description  which  relate  to  public  servants,  though 
not  committed  by  them ;  such  as  a  private  person  taking  a  pre- 
sent to  induce  a  public  servant  to  act  corruptly,  or  personating 
or  wearing  the  garb  of  a  public  servant. 

Those  offences  which  are  common  between  public  servants 
and  other  members  of  the  community  are  left  to  the  general 
provisions  of  the  Code. 

Certain  malpractices  and  transgressions  of  public  servants, 
which  they  alone  can'  commit  and  which  deserve  punishment. 


134  CHAPTER   IX. 

are  not  provided  for  in  the  Code.  Probably  it  was  supposed  tbat 
they  would  be  most  fitly  punished  by  simple  dismissal  from  the 
public  service. 

161.    Whoever,  being  or  expecting  to  be  a  public 

PubUo  servant  taking  a  gra-      SCr Vant,  aCCCptS  Or  obtalnS,  Ot 

SSS.t?^tU?1L*JSSi't^o"^^^  agrees  to  accept,  or  attempts 
oflioiaiact.  Iq  obtain  from  any  person,  for 

himself  or  for  any  other  person,  any  gratification 
whatever,  other  than  legal  remuneration,  as  a  motive 
or  reward  for  doing  or  forbearing  to  do  any  ofiScial 
act,  or  for  showing  or  forbearing  to  show,  in  the  exer- 
cise of  his  official  functions,  favor  or  disfavor  to  any 
person,  or  for  rendering  or  attempting  to  ren- 
der any  service  or  disservice  to  any  person,  with 
the  Legislative  or  Executive  Government  of  India,  or 
with  the  Government  of  any  presidency  or  with  any 
Lieutenant-Governor,  or  with  any  public  servant,  as 
such,  shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  three 
years,  or  with  fine,  or  with  both. 

Explanations.  "  Expecting  to  be  a  public  servant.'* 
If  a  person  not  expecting  to  be  in  office  obtains  a 
gratification  by  deceiving  others  into  a  belief  that  he 
is  about  to  be  in  office,  and  that  he  will  then  serve 
them,  he  may  be  guilty  of  cheating,  but  he  is  not 
guilty  of  the  offence  defined  in  this  Section. 

"  Gratification.'*  The  word  *•  gratification*'  is  not 
restricted  to  pecuniary  gratifications,  or  to  gratifi* 
cations  estimable  in  money. 

"  Legal  remuneration.**  The  words  "legal  remu- 
neration** are  not  restricted  to  remuneration  which  a 
public  servant  can  lawfully  demand,  but  include  all 
remuneration  which  he  is  permitted  by  the  Govern- 
ment which  he  serves  to  accept. 

"A  motive  or  reward  for  doing.**  A  person 
who  receives  a  gratification  as  a  motive  for  doing  what 
he  does  not  intend  to  do,  or  as  a  reward  for  doing 
what  he  has  not  done,  comes  within  these  words. 


OFFENCES  BY  PUBLIC  SEEVANTS.  135 

Illusirationa. 

(a)  A,  a  Moonsiff,  obtains  from  Z,  a  banker,  a  situation  in  Z's 
bank  for  A's  brother,  as  a  reward  to  A  for  deciding  a  cause  in  favour 
of  Z.     A  has  committed  the  offence  defined  in  this  Section. 

(b)  Ay  holding  the  office  of  Resident  at  the  Court  of  ~  a  subsidiary 
power,  accepts  a  lakh  of  Rupees  from  the  minister  of  that  power. 
It  does  not  appear  that  A  accepted  this  sum  as  a  motive  or  a  reward 
for  doing  or  forbearing  to  do  any  particular  official  act,  or  for 
rendering  or  attempting  to  render  any  particular  service  to  that  power 
with  the  British  Government.  But  it  does  appear  that  A  accepted 
the  sum  as  a  motive  or  a  reward  for  generally  showing  favour  in  the 
exercise  of  hb  official  functions  to  that  power.  A  has  committed  the 
offence  defined  in  this  Section. 

(c)  A,  a  public  servant,  induces  Z  erroneously  to  believe  that  A's 
influence  with  the  Government  has  obtained  a  title  for  Z,  and  thus 
induces  Z  to  give  A  money  as  a  reward  for  this  service.  A  has  com- 
mitted the  offence  defined  in  this  Section. 

"Legal  remuneration.''  What  is  given  to  him  by  the 
Government  which  he  serves,  or  by  any  person  having  authority 
from  that  Government  to  give, — or  what  is  given  to  him  by  any 
person  whomsoever,  if  the  Government  permits  him  to  accept 
the  gift, — is  comprehended  under  this  expression. 

"  A  motive  or  reward  for  doing.''  This  explanation  appears 
to  be  intended  to  guard  against  such  an  excase  as  if  a  public 
servant  were  to  endeavour  to  justify  this  acceptance  of  a  gift 
or  bribe  by  urging  that  the  order  passed  by  him  was  never- 
theless a  just  one  and  against  the  very  person  from  whom  he 
received  the  bribe. 

Suppose  A,  a  public  servant,  has  done  B  some  service,  and  B 
makes  him  a  present  for  such  past  service.  In  this  case  is  a 
reward  for  past  service  an  offence  ?  Not  if  the  present  falls 
within  the  terms  of  the  definition  of  legal  remuneration. 
If,  for  instance,  A  is  permitted  by  the  Government  which 
he  serves,  to  accept  the  present,  he  commits  no  offence.  But  if 
the  service  done,  was  such  as  he  was  bound  to  render  officially 
without  any  remuneration,  or  if  it  was  such  as  he  ought  not  to 
have  rendered,  A's  acceptance  of  a  present  at  any  time  would 
certainly  be  an  offence.  What  is  forbidden  (speaking  gener- 
ally) is  the  receiving  a  gratification  "  as  a  motive"  to  do,  or 


136  CHAPTEE  IX. 

as  '^  a  reward'*  for  haviag  doue^  any  such  thing  as  is  described 
in  the  definition. 

162.  Whoever  accepts,  or  obtains,  or  agrees  to 

accept,  or  attempts  to  obtain, 

TakingagratlfloationinoT-       /»  i»        !«•  li 

der  by  corrupt  or  iUegal  means      irom    anV   pcrSOn,    lOr    nimseil 
io  influence  a  public  servant.  />  ±-u 

or  for  any  other  person,  any 
gratification  whatever  as  a  motive  or  reward  for 
inducing,  by  corrupt  or  illegal  means,  any  public 
servant  to  do  or  to  forbear  to  do  any  official  act,  or 
in  the  exercise  of  the  official  functions  of  such  public 
servant  to  show  favor  or  disfavor  to  any  person,  or  to 
render  or  attempt  to  render  any  service  or  disservice 
to  any  person  with  the  Legislative  or  Executive  Go- 
vernment of  India,  or  with  the  Government  of  any 
Presidency,  or  with  any  Lieutenant-Governor,  or  with 
any  public  servant,  as  such,  shall  be  punished  with 
imprisonment  of  either  description,  for  a  term  which 
may  extend  to  three  years,  or  with  fine,  or  with  both. 

163.  Whoever  accepts  or  obtains,  or  agrees  to 

accept,  or  attempts  to  obtain. 

Taking  a  gratification  for       n  /•         -l  •  li 

the  exercise  of  personal  influ-      irOm    aUV    pCrSOU,  lOr    JimiSell 
ence  with  a  public  servant.  n  ±i 

or  for  any  other  person,  any 
gratification  whatever  as  a  motive  or  reward  for 
inducing,  by  the  exercise  of  personal  influence,  any 
public  servant  to  do  or  to  forbear  to  do  any  official 
act,  or  in  the  exercise  of  the  official  functions  of  such 
public  servant  to  show  favor  or  disfavor  to  any  person, 
or  to  render  or  attempt  to  render  any  service  or  dis- 
service to  any  person  with  the  Legislative  or  Execu- 
tive Government  of  India,  or  with  the  Government  of 
any  Presidency,  or  with,  any  Lieutenant-Governor,  or 
with  any  public  servant,  as  such,  shall  be  punished 
with  simple  imprisonment,  for  a  term  which  may 
extend  to  one  year,  or  with  fine,  or  with  both. 

Illustration. 

An  advocate  who  receives  a  fee  for  arguing  a  case  before  a  Judge ; 
a  person  who  receives  pay  for  arranging  and  correcting  a  memorial 
addressed  to  Government,  setting  forth  the  services  and  claims  of  the 
memorialist ;  a  paid  agent  for  a  condemned  criminal,  who  lays  before 


OFFENCES  BY  PUBLIC  SERVANTS.       137 

t!ie  Government  statements  tending  to  show  that  the  condemnation 
was  unjust ;  are  not  within  this  Section,  inasmuch  as  they  do  not 
exercise  or  profess  to  exercise  personal  influence. 

164.  Whoever,  being  a  public  servant,  in  respect 

Puni^Oiment  for   abetment      ^^ ^^T  ^1?^^  ""l  ^}^  ''^^''''f 

fak^^ibove  d^edf  ^®  ^^"  defined  m  the  last  two  preced- 
ing Sections  is  committed, 
abets  the  oflfence,  shall  be  punished  with  imprison- 
ment of  either  description,  for  a  term  which  may 
extend  to  three  years,  or  with  fine,  or  with  both. 

Uluafration, 

A  is  a  puhlic  servant.  B,  A*s  wife,  receives  a  present  as  a  motive  for 
soHciting  A  to  give  an  office  to  a  particular  person.  A  abets  her  doing 
80.  B  is  punishable  with  imprisonment  for  a  term  not  exceeding  one 
year,  or  with  fine,  or  with  both.  A  is  punishable  with  imprisonment  for 
a  term  which  may  extend  to  three  years,  or  with  fine,  or  with  both. 

This  is  one  of  the  express  provisions  made  by  the  Code  for 
the  punishment  of  abetment  which  are  referred  to  by  Section 
109,  and  other  Sections  of  the  Chapter  of  Abetment.  It  will 
be  observed  that  Sections  162  and  163  extend  to  attempts  to 
obtain,  &c. 

The  taking  of  presents  by  public  servants  with  a  corrupt 
motive  is  a  crime  which  ought  to  be  made  cognizable  and 
punishable  by  the  Criminal  Courts.  But  the  mere  taking  of 
presents  by  public  servants  when  such  presents  are  not  corrupt- 
ly  taken  is  not  a  matter  for  punishment.  The  law,  however, 
because  of  the  difficulty  of  proving  what  is  so  little  palpable  as 
a  corrupt  motive,  seizes  upon  one  material  circumstance  of 
evidence  of  an  offence,  and  enacts  it  as  a  definition  of  an 
offence  itself. 

165.  Whoever,  being  a  public    servant,  accepts 

or  obtains,  or  agrees  to  accept 
.n^^^^uaKrtwW'^^tt?  or  attempts  to  obtain,  for  him- 
SSS^ldiSJ'iny^S^SIdiSg  self,  or  for  any  other  person, 
SchSS^uc^r^r*^*^  ^^    a^y  valuable  thing,   without 

consideration,  or  for  a  con- 
sideration which  he  knows  to  be  inadequate  from  any 


138  CUAPTER  IX. 

person  whom  he  knows  to  have  heen,  or  to  he,  or  to 
be  likely  to  he  concerned  in  any  proceeding  or 
husiness  transacted  or  ahout  to  he  transacted  hy  such 
puhlic  servant,  or  having  any  connection  with  the 
official  functions  of  himself  or  of  any  puhlic  servant 
to  whom  he  is  suhordinate,  or  from  any  person  whom 
he  knows  to  he  interested  in  or  related  to  the  person 
so  concerned,  shall  he  punished  with  simple  impri- 
sonment for  a  term  which  may  extend  to  two  years, 
or  with  fine,  or  with  hoth. 

Illustratiotu. 

(a)  A,  a  collector,  hires  a  house  of  Z,  who  has  a  settlement  case 
pending  hefore  him.  It  is  agreed  that  A  shall  pay  fifty  Eiipees  a 
month,  the  house  being  such  that,  if  the  bargain  were  made  in  good 
faith,  A  would  be  required  to  pay  two  hundred  Bupees  a  month.  A 
has  obtained  a  valuable  thing  from  Z  without  adequate  consideration. 

(b)  A,  a  Judge,  buys  of  Z,  who  has  a  cause  pending  in  A*s  Court, 
Government  Promissory  Notes  at  a  discount,  when  they  are  selling  in 
the  market  at  a  premium.  A  has  obtained  a  valuable  thing  from  Z 
without  adequate  consideration. 

(c)  Z's  brother  is  apprehended  and  taken  before  A,  a  Magistrate, 
on  a  charge  of  perjury.  A  sells  to  Z  shares  in  a  bank  at  a  premium, 
when  they  are  selling  in  the  market  at  a  discount.  Z  pays  A  for  the 
shares  accordingly.  The  money  so  obtained  by  A  is  a  valuable  thing 
obtained  by  him  without  adequate  consideration. 

The  proceeding  or  basiuess  mast  be  one  for  transaction  by 
the  public  servant, — or  if  not  for  transaction  by  himself  person- 
ally,  it  must  have  some  connection  with  the  official  functions 
of  himself  or  of  a  public  servant  to  whom  he  is  subordinate. 
These  expressions  seem  wide  enough  to  comprise  every  step 
connected  with  the  progress  of  any  proceeding  or  business 
through  a  Court  or  public  office,  as  well  those  which  ar0  con- 
ducted mainly  by  subordinate  hands,  as  those  which  come 
under  the  immediate  direction  of  the  official  superior. 

Persons  who  stand  in  such  a  relative  position  to  each  other 
as  is  contemplated  in  this  Section,  commit  no  offence  within  its 
terms  if  they  have  bond  fide  dealings  together  touching  the 
buying  or  selling  of  any  thing.  Such  a  practice  as  the  sale  or 
purchase  by  a  public  servant,  even  at  a  full  and  fair  price,  to  or 
from  a  person  who  is  a  suitor,  or  has  other  business  for  trans« 


OFFENCES   BY   PUBLIC   SERVANTS.  139 

action  before  him,  is  not  to  be  encouraged,  even  if  to  be  tolerat- 
ed. Bat  ibis  Section  provides  no  penalty  for  any  snch  case.  Its 
provisions  are  applicable  only  when  a  valuable  thing  is  accept- 
ed or  obtained  "  without  consideration,  or  for  a  consideration 
which  the  public  servant  knows  to  be  inadequate.'' 

166.    Wkoever,  being  a  public  servant,  knowingly 
PubucerrantdiiobeTinga    disoDeys  any  direction  of  the 
^^<S^^^^i^^i    law  as  to  the  way  in  which  he 
^^^^^^  is  to  conduct  himself  as  such 

public  servant,  intending  to  cau^e,  or  knowing  it  to 
be  likely  that  he  will,  by  such  disobedience,  cause 
injury  to  any  person,  shall  be  punished  with  simple 
imprisonment  for  a  term  which  may  extend  to  one 
year,  or  with  fine,  or  with  both. 

niustraiion. 

A,  being  an  officer  directed  by  law  to  take  property  in  execution, 
in  order  to  satisfy  a  decree  pronounced  in  Z*s  favour  by  a  Court 
of  Justice,  knowingly  disobeys  that  direction  of  law,  with  the  know- 
ledge that  he  is  likely  thereby  to  cause  injury  to  Z.  A  has  commit- 
ted the  offence  defined  in  this  Section. 

The  conduct  of  many  classes  of  public  servants  in  the  dis- 
charge of  their  official  duties  is  regulated  not  merely  by  orders 
received  directly  from  their  superiors,  but  by  laws,  which  pre- 
scribe the  course  of  proceeding  to  be  followed.  Such  laws^ 
whether  they  relate  to  judicial  or  to  other  proceedings,  neces- 
sarilj  give  a  certain  latitude  of  discretion  to  those  whom  they 
are  intended  to  guide, 

"  Any  direction  of  law/'  Whether  the  direction  is  given  by 
a  written  law,  or  whether  it  is  a  mandate  proceeding  from  a 
competent  authority  which  the  public  servant  is  bound  by  law 
to  obey, — as  a  writ  or  order  for  the  liberation  of  a  person 
from  prison. 

The  offence  hereby  made  punishable  consists,  not  in  an  in- 
advertent or  even  careless,  but  in  a  corrupt,  departure  from  the 
direction  of  the  law.  The  officer ''  knowingly  disobeys'*  in  order 
to  cause  "  injury,'' — i.  e.  illegal  harm  to  any  person  in  body, 
mind^  reputation  or  property,  (see  Section  44).  There  must  bo 
T  2 


140  CHAPTER   IX. 

proof  of  such  facts  as  raise  an  inference  of  a  wilful  disobedience, 
coupled  with  the  guilty  knowledge  or  intention  to  injure.  A 
public  servant  would  always  be  presumed  to  know  the  law 
by  which  his  conduct  should  be  guided.  But  it  would  of 
course  be  competent  to  him  to  shew  in  mitigation  or  excuse, 
that  he  acted  in  obedience  to  the  orders  of  his  official  superiors 
and  without  any  intent  to  injure. 

167.  Whoever  being  a  public  servant,  and  being, 

as  such  public  servant,  charg- 

Pablio  servant  framing   an         j  »ii^     .-i  ..  ^ 

incorrect  document  witE  in-  eCl  Wltll  tnC  preparation  Ot 
tent  to  cause  injury.  t  ij.«  i»j  2. 

translation  ox  any  document, 
frames  or  translates  that  document  in  a  manner 
which  he  knows  or  believes  to  be  incorrect,  intend- 
ing thereby  to  cause,  or  knowing  it  to  be  likely 
that  he  may  thereby  cause  injury  to  any  person,  shaU 
be  punished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  three  years,  or  with 
fine,  or  with  both. 

The  intention  or  knowledge  is  the  essence  of  the  offence. 
Errors  of  carelessness  or  ignorance  are  not  made  punishable  as 
offences,  even  though  they  may  occur  in  important  parts  of  a 
document.  It  must  be  proved,  that  the  accused  person  is  a 
public  servant  charged  with  the  preparation,  &c.  of  the  docu- 
ment (proof  tbat  he  usually  has  the  preparation  in  fact  will  in 
the  first  instance  be  suflScient), — that  the  document  is  incorrect 
(his  knowledge  or  belief  of  this  will  be  presumed  until  the 
contrary  is  proved  by  him), — and  that  he  had  the  knowledge 
or  intention  to  cause  injury. 

See  also  as  to  the  liabilities  of  a  translator  who  gives  a 
false  translation.     Section  191,  Illustration  fe.J 

168.  Whoever,  being  a  public  servant,  and  being 

Public  servant  unlawfuUy      legally   bouud,  aS  SUCh   public 

engaging  in  trade.  scrvaut,  uot  to  engage  in  trade, 

engages  in  trade,  shall  be  punished  with  simple  im- 
prisonment for  a  term  which  may  extend  to  one  year, 
or  with  fine,  or  with  both. 


OFFENCES  BY  PUBLIC   SERVANTS.  lil 

The  obligation  not  to  trade  to  which  this  Section  refers,  is 
that  which  arises  from  some  prohibition  which  has  the  force  of 
law,  or  by  which  a  person  is  '^  legally  bound/^  (see  Section  43). 

"  To  engage  in  trade."  A  person  engages  in  trade  who 
habitnally  buys  and  sells  with  a  view  to  profit.  The  expression, 
however,  may  be  intended  to  bear  a  wider  meaning  here,  and 
it  will  be  for  the  Courts  to  decide  what  is  included  in  the  term. 

It  is  considered  inexpedient  to  permit  Government  servants 
to  engage  in  pursuits  by  which  their  time  and  attention  would 
be  diverted  from  their  proper  duties.  Accordingly  no  officer, 
80  long  as  he  remains  in  the  actual  service  of  the  Government, 
is  permitted  to  acquire  and  hold  lands  for  agricultural  purpos- 
es in  any  part  of  India,  and  there  may  be  other  similar  or  more 
extensive  prohibitions  binding  on  all  public  servants.  But 
disobedience  to  the  orders  of  Government  in  this  matter  is  not 
it  seems,  to  be  accounted  an  oflfence  punishable  by  this  Section. 

The  present  provision  applies  to  the  punishment  of  persons 
who  are  prohibited  by  law  from  engaging  in  trade.  Such  a 
prohibition,  for  instance,  as  that  contained  in  Act  VIII.  of  1855, 
by  which  it  is  declared  an  ofifence  for  any  Administrator 
General  to  engage  in  trade,  is  here  meant.  The  Section 
can  scarcely  be  deemed  to  apply  where  the  prohibition  is  by 
contract  or  agreement  between  the  employer  and  the  employed. 

There  should  be  proof  of  the  particular  prohibition  which  is 
applicable ;  and  of  the  trading,  that  is  the  buying  and  selling 
as  a  course  of  business. 

169.     Whoever,  being  a  public  servant,  and  being 

^PubUo  servant  unlawfuUy  Wallv  bound,  aS  SUCh  public 
buying  or  bidding  lor  pro-  ^       ^ ,  ,.  ,  i«i 

perty.  servant,  not  to  purchase  or  bid 

for  certain  property,  purchases  or  bids  for  that  proper- 
ty, either  in  his  own  name  or  in  the  name  of  another 
or  jointly  or  in  shares  with  others,  shall  be  punished 
with  simple  imprisonment  for  a  term  which  may 
extend  to  two  years,  or  with  fine,  or  with  both ;  and 
the  property,  il*  purchased,  shall  be  confiscated. 

Various  laws  prohibit  oflBcers  holding  sales  of  property ;  and 


142  CHAPTER  IX. 

persons  employed  by  or  subordinate  to  them,  from  purchasing 
directly  or  indirectly  any  property  at  such  sales. 

The  precise  terms  of  the  law  which  creates  the  obligation 
not  to  bid  should  be  referred  to ;  for  the  prohibition  may  not 
be  absolute,  but  only  against  purchasing  at  certain  sales. 

170.  Whoever  pretends  to  hold  any  particular 
Personftting  a  pnbuo  ser-    office  as  a  pubUc  8ervant,know- 

^*^*-  ing  that  he  does  not  hold  such 

office,  or  falsely  personates  any  other  person  holding 
such  office,  and  in  such  assumed  character  does  or 
attempts  to  do  any  act  under  color  of  such  office,  shall 
be  punished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  two  years,  or  with 
fine,  or  with  both. 

There  are  two  distinct  offences  here  punished.  A  may 
falsely  pretend  that  he  has  been  appointed  Darogah  of  a  certain 
place  in  the  room  of  Z,  deceased ;  or  he  may  falsely  pretend 
to  be  Z,  who  is  the  Darogah  of  that  place.  In  either  case,  if 
he  does  or  attempts  such  an  act  as  that  described,  he  commits 
the  offence.  An  act  is  done  '*  under  colour"  of  the  office,  if 
it  is  an  act  having  some  relation  to  the  office  which  he  pre- 
tends to  hold.  If  it  was  no  relation  to  the  office,  as  if  A,  pre- 
tending to  be  a  servant  of  Government,  travelling  through  a 
district,  obtains  money,  provisions,  &c.,  the  offence  may  amount 
to  cheating  under  Section  415,  but  it  is  not  punishable  under 
the  present  Section. 

The  offence  first  described  in  this  clause  can,  it  seems,  be  com- 
mitted only  where  there  is  in  fact  such  an  office  in  existence. 
If  in  consequence  of  a  dispute  as  to  the  right  to  nominate  to  an 
office  or  to  remove  from  an  office,  it  is  uncertain  who  legally 
fills  the  office, — a  person  doing  an  official  act  in  the  assertion  of 
what  he  honestly  believes  to  be  his  lawful  title  to  the  office, 
would  not  be  deemed  within  this  Section. 

171.  Whoever,  not  belonging  to  a  certain  class  of 

public    servants,    wears    any 

'Wearing  garb  or  carrying      ^       -,  .  ,    ,  " 

token  used  by  pubuc  servant    ffarb  or  camcs  auv  tokcu  re- 

with  firaadulent  intent.  i,t  t.  a.   i 

semblmg  any  garb  or  token 


OFFENCES  AGAINST  PUBLIC  SERVANTS.  143 

used  by  that  class  of  public  servants,  with  the  inten- 
tion that  it  may  be  believed,  or  with  the  knowledge 
that  it  is  likely  to  be  believed,  that  he  belongs  to  that 
class  of  public  servants,  shall  be  punished  with  impri- 
sonment of  either  description,  for  a  term  which  may 
extend  to  three  months,  or  with  fine  which  may  ex. 
tend  to  two  hundred  Rupees,  or  with  both. 

A  similar  offence,  wearing  a  soldier's  dress,  is  defined  and 
punished  by  Section  140.  It  will  be  noticed  that  the  offence 
is  complete,  althongh  no  act  is  done  or  attempted  in  the 
assumed  official  character.  The  mere  circamstance  of  wearing 
snch  a  garb  or  using  such  a  token,  with  the  intention  or  know- 
ledge supposed,  is  sufficient. 


Chapter  X. 
OF  CONTEMPTS  OP  THE  LAWFUL  AUTHO- 
RITY OF  PUBLIC  SERVANTS. 


This  Chapter  contains  those  penal  provisions  which  are 
intended  to  enforce  obedience  to  the  lawful  authority  of  public 
servants.  Contempts  of  the  lawful  authority  of  Courts  of  Jus- 
tice, of  officers  of  revenue,  of  officers  of  police,  and  of  other 
public  servants  are  punishable  under  this  head.  The  Civil  and 
Criminal  Procedure  Codes  and  other  laws  make  provision  for 
the  tribunals  empowered  to  adjudicate  in  such  cases,  and  for 
the  amount  of  penalty  which  each  grade  of  Court  or  officer  is 
competent  to  award. 

The  penalties  prescribed  in  this  Chapter  for  particular 
offences  obstructive  of  judicial  proceedings  must  not  be  taken 
to  interfere  with  other  powers  possessed  by  Courts  of  Justice 
and  public  functionaries  to  enforce  their  orders.  They  will 
not  affect  other  coercive  powers  of  Courts  of  Justice  to  compel 
performance  of  their  orders  and  decrees,  whether  by  attachment 
and  sale  of  property,  by  imprisonment  or  otherwise.     And  it 


144  CHAPTER  X. 

must  always  be  borne  in  mind  that  notbing  in  this  Code  is  in- 
tended to  repeal  or  aflfect  any  special  or  local  law,  (see  Sectiona 
5,  41  and  42). 

172.  Whoever  absconds  in  order  to  avoid  being 
Absconding  to  avoid  ser-     served  with  a  summons,  notice, 

JiooeedinS^m'V'pubuSs^r!  or  ordcr,  proceeding  from  any 
^^^*  public  servant  legally  compe- 

tent, as  such  public  servant,  to  issue  such  summons, 
notice,  or  order,  shall  be  punished  with  simple  impri- 
sonment for  a  term  which  may  extend  to  one  month, 
or  with  fine  which  may  extend  to  five  hundred  Ru- 
pees, or  with  both;  or,  if  the  summons,  notice,  or 
order  is  to  attend  in  person  or  by  agent,  or  to  produce 
a  document  in  a  Court  of  Justice,  with  simple  impri- 
sonment for  a  term  which  may  extend  to  six  months, 
or  with  fine  which  may  extend  to  one  thousand 
Rupees,  or  with  both. 

To  constitute  the  oflfence  described  in  the  first  clause  of  this 
Section  the  summons  or  notice,  &c.  must  be  a  document 
actually  issued,  or  at  the  time  of  the  absconding  about  to 
be  issued,  by  a  legally  authorized  public  servant.  It  must 
be  addressed  to  a  particular  person,  and  not  be  a  mere 
general  notification  or  proclamation  intended  for  the  public. 
And  the  absconding  must  be  by  one  who  knows  or  has 
reason  to  know  that  he  will  be  served  with  the  notice,  Ac,  if 
he  does  not  hide  or  absent  himself.  An  involuntary  absence, 
as  if  he  is  arrested  or  detained  elsewhere  by  sickness  or  other 
just  cause,  would,  of  course,  be  an  answer  to  the  charge.  So 
would  an  absence  not  originating  in  the  desire  to  avoid  service. 

The  oJflTence  punishable  by  the  latter  clause  of  the  Section  is 
aggravated,  because  the  summons,  &c.  is  for  attendance  in  a 
Court  of  Justice.     (See  Section  20.) 

173.  Whoever  in  any  manner  intentionally  pre- 

Preventintt  service  of  sum-      VCUts  the    SCrviug    OU    himSClf, 

^r'^'^prSvefc  5SSu?SilfiI  or  on  any  other  person,  of  any 
*^®'®''^'  summons,  notice,  or  order  pro- 


OFFENCES  AGAINST  PUBLIC   SERVANTS.  145 

oeeding  from  any  public  servant  legally  competent^  as 
eucli  public  servant,  to  issue  such  summonsi  notice, 
or  order,  or  intentionally  prevents  the  lawful  affixing 
to  any  place  of  any  such  summons,  notice,  or  order, 
or  intentionally  removes  any  such  summons,  notice, 
or  order  from  any  place  to  which  it  is  lawfully  affixed, 
or  intentionally  prevents  the  lawful  making  of  any 
proclamation,  under  the  authority  of  any  public 
servant  legally  competent,  as  such  public  servant,  to 
direct  such  proclamation  to  be  made,  shall  be  punished 
with  simple  imprisonment  for  a  term  which  may  ex- 
tend to  one  month,  or  with  fine  which  may  extend  to 
five  hundred  Bupees,  or  with  both ;  or  if  the  sum- 
mons,  notice,  order,  or  proclamation  is  to  attend  in 
person,  or  by  agent,  or  to  produce  a  document  in  a 
Court  of  Justice,  with  simple  imprisonment  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  one  thousand  Rupees,  or  with  both. 

Varioas  modes  of  serving  notices,  processes,  &c.,  are  provided 
by  many  laws*  In  default  of  personal  service,  in  certain  cases,  a 
summons  may  be  affixed  in  some  conspicuous  place  on  the  house 
of  the  person  to  be  served,  or  a  proclamation  may  be  made^ 

This  Section  punishes,  as  being  guilty  of  an  offence,  those 
who  interfere  with  or  prevent  such  modes  of  service,  as  well  as 
those  who  prevent  a  personal  service.  No  offence  is  committed 
unless  the  intention  to  obstruct  public  justice  or  some  public 
authority  exists.  If  it  were  once  proved,  however,  that  the  person 
accused  actually  did  prevent  or  interfere  with  the  service,  it  would 
lie  upon  him  to  show  that  he  did  so  with  no  wrong  intention. 

174.    Whoever,  being  legally  bound  to  attend  in 

person  or  by  an  agent  at  a  cer- 

Non**tteiidanoe   in   obedi-      ^    •  -i  j     IT*  *  i. 

•noe  to  an  order  from  ft  pub-  tain  piaCC  and  tUnC  in  ODC- 
lie  .errant.  ^j^^^  ^^  ^   SUmmOnS,    UOticO, 

order,  or  proclamation  proceeding  from  any  public 
servant  legally  competent,  as  such  public  servant,  to 
issue  the  same,  intentionally  omits  to  attend  at  that 
place  or  time,  or  departs  from  the  place  where  be  is 

V 


146  CfHAPTER  X. 

bound  to  attend  before  the  time  at  which  it  is  lawful 
for  him  to  depart,  shall  be  punished  with  simple  im- 
prisonment for  a  term  which  may  extend  to  one 
month,  or  with  fine  which  may  extend  to  five  hundred 
Rupees,  or  with  both ;  or  if  the  summons,  notice,  or- 
der, or  proclamation  is  to  attend  in  person  or  by 
agent  in  a  Court  of  Justice,  with  simple  imprisonment 
for  a  term  which  may  extend  to  six  months,  or  with 
fine  which  may  extend  to  one  thousand  Rupees^or  with 
both. 

Illustrations, 

(a)  A,  being  legally  bound  to  appear  before  tbe  Supreme  Court 
at  Calcutta  in  obedience  to  a  subpoena  issuing  from  that  Court,  in- 
tentionally omits  to  appear.  A  has  committed  the  offence  defined 
in  this  Section. 

(b)  A,  being  legally  bound  to  appear  before  a  Zillah  Judge,  as  a 
witness,  in  obedience  to  a  summons  issued  by  that  Zillah  Judge, 
intentionally  omits  to  appear.  A  has  committed  the  offence  defined 
in  this  Section. 

The  distinction  between  disobedience  to  the  orders  of  public 
servants  which  relate  to  judicial  proceedings^  and  disobedience 
to  other  orders,  is  qbserved.  What  is  included  by  the  words 
''  Court  of  Justice'^  which  occur  in  this  and  the  preceding 
and  the  following  Sections,  has  been  explained  by  Section  20. 

When  it  is  optional  with  a  person  to  attend  or  not,  or  some 
alternative  is  offered  to  him,  as  if  he  is  to  attend  in  person  or 
by  agent,  or  to  attend  merely  to  produce  a  document,  he 
incurs  no  penalty  by  a  personal  non-attendance,  if  the  order 
is  in  substance  complied  with. 

175.    Whoever,  being  legally  bound  to  produce  or 
Omission  to  Broduoe  a  do-     deliver  up  any  document  to 
2^r"s^on?e|£]yb5^r^^^       any  pubUc  servant,  as  such, 
ducesuonaooument.  intentionally  omits  so  to  pro- 

duce or  deliver  up  the  same,  shall  be  punished  with  sim- 
ple imprisonment  for  a  term  which  may  extend  to  one 
month,  or  with  fine  which  may  extend  to  five  hun- 
dred Rupees,  or  with  both ;  or,  if  the  document  is  to 
be  produced  or  delivered  up  to  a  Court  of  Justice, 
with  simple  imprisonment  for  a  term  which  may  ex- 


OPFBNCBS  AGAINST  PTJBLIC  SERVANTS,  147 

tend  to  six  months,  or  with  fine  which  may  extend  to 
one  thousand  Rupees,  or  with  both* 

Illustration. 

A,  being  legally  bound  to  produce  a  document  before  a  Zillab 
Court,  intentionally  omits  to  produce  the  same*  A  has  committed 
the  offence  defined  in  this  Section.^ 

Special  laws  which  require  the  production  and  delivery  of 
documents^  and  contain  penalties  for  the  omission  to  produce  or 
other  non-compliance  with  orders  relating  to  them,  are  not 
affected  by  this  provision.     See  Sections  5  and  41. 

176.    Whoever,  being  legally  bound  to  give  any 

notice  or  to  furnish  informa- 
in?5SS^?n^?7uSS?^?!  tion  on  any  subject  to  any 
tJ^vJno^ST^uJSSSiSaSS?  public  servant,  as  such,  inten- 
tionally omits  to  give  such 
notice  or  to  furnish  such  information  in  the  manner 
and  at  the  time  required  by  law,  shall  be  punished 
with  simple  imprisonment  for  a  term  which  may 
extend  to  one  month,  or  with  fine  which  may  extend 
to  five  hundred  Rupees,  or  with  both;  or,  if  the 
notice  or  information  required  to  be  given  respects 
the  commission  of  an  offence,  or  is  required  for  the 
purpose  of  preventing  the  commission  of  an  oflience, 
or  in  order  to  the  apprehension  of  an  offender,  with 
simple  imprisonment  for  a  term,  which  may  extend  to 
six  months,  or  with  fine  which  may  extend  to  one 
thousand  Rupees,  or  with  both. 

When  there  is  an  obligation  imposed  by  law  to  furnish  infer* 
mation  on  any  subject  to  a  public  servant,  the  penalty  which  this 
section  provides  will  apply  to  any  intentional  breach  of  that  obli- 
gation. Laws  relative  to  different  branches  of  the  public  reve«- 
nue,  as,  for  example,  the  Income  Tax  Act,  require  returns  to  be 
made,  information  to  be  furnished,  &c.  And  by  other  laws, 
persons  are  bound  to  give  notice  of  various  matters  to  publio 
servants*  Such  laws  will  often  be  found  to  be  excepted  from 
the  operation  of  this  code  by  the  5th  section,  as  being  '^  special 
TJ  2 


148  CHAPTBB  X. 

laws''  or  "  local  laws''  (see  Sections  41, 42.)  But  if  they  are  not 
within  either  of  those  exceptions,  the  proyisions  of  Section  17d 
will,  it  seems,  be  applicable  to  punish  an  intentional  omission 
to  give  any  notice  or  information  required  by  them. 

The  omission  must  be  intentional.  It  is  not  a  negligent,  but 
a  wilful  omission,  that  constitutes  the  offence.  An  absent  land*« 
holder  to  whom  the  legal  obligation  applies  would  not  ordinu^y 
be  deemed  personally  liable  for  the  omission  of  his  agent.  But 
the  precise  terms  of  the  law  which  imposes  the  obligation  must 
be  consulted  to  ascertain  the  limits  of  his  liability.  If  the  law 
has  attached  to  the  tenure  of  land  a  certain  obligation,  the 
owner  cannot  evade  a  performance  of  his  legal  duty  by 
absence  from  his  property. 

The  penalty  is  increased  when  the  notice  or  information 
required  relates  to  an  offence  or  the  apprehension  of  an  offender. 

See  the  explanations  of  the  words ''legally  bound"  (Sec* 
tion  43),  "public  servant"  (Section  21),  and  "offence" 
(Section  40). 

177.  Whoever,  being  legallj^  bound  to  furnish 
yumirtiing  fuio  informifc-  information  ou  any  subject  to 
^^^  any  public  servant,  as  such, 

famishes,  as  true,  information  on  the  subject  which 
he  knows  or  has  reason  to  believe  to  be  false,  shall 
be  punished  with  simple  imprisonment  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  one  thousand  Rupees,  or  with  both ; 
or,  if  the  information  which  he.  is  legally  bound  to 
give,  respects  the  commission  of  an  offence,  or  is 
required  for  the  purpose  of  preventing  the  commis* 
sion  of  an  offence,  or  m  order  to  the  apprehension  of 
an  offender,  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  two  years,  or  with 
fine,  or  with  both. 

Illustrations. 

(a)  A,  a  landholder,  knowing  of  the  commission  of  a  macder 
within  the  limits  of  his  estate,  wilfully  misiDforms  the  Magistrate 
of  the  District  that  the  death  has  oocurred  by  accident  in  conse- 


0PFBKCE8  AGAINST  PUBLIC  SERVANTS.  149 

qnmioe  of  the  bite  of  a  snake.  A  ia  guilty  of  the  offence  defined 
in  this  Section. 

(b)  A,  a  village  watchman,  knowing  that  a  considerable  body  of 
strangers  has  passed  through  his  Tillage  in  order  to  commit  a  dacoity 
in  the  house  of  Z,  a  wealUiy  merchant  residing  in  a  neighbouring 
place,  and  being  bound,  under  Clause  5,  Section  7,  Kegulation  III. 
1821  of  the  Bengal  Code,  to  give  early  and  punctual  information  of 
the  above  fact  to  the  officer  of  the  nearest  Police  Station,  wilfully 
misinforms  the  Police  officer  that  a  body  of  suspicious  characters 
passed  through  the  village  with  a  view  to  commit  dacoity  in  a  certain 
distant  place  in  a  different  direction.  Here  A  is  guilty  of  the  offence 
defined  in  the  latter  part  of  this  Section. 

See  the  note  to  the  preceding  Section :  the  only  difference 
between  the  two  Sections  being  that  while  the  one  deals  with 
the  omission  to  give  information^  the  other  deals  with  the  giving 
of  false  information. 

178.  Whoever  refuses  to  bind  himself  by  an  oath 

to  state  the  truth,  when  re- 
j^SSd^^lSe^^S  b?^a  quired  so  to  bind  himself  by 
piibuoservMit.  ^  public  servaut,  legally  com- 

petent to  require  that  he  shall  so  bind  himself,  shall 
oe  punished  with  simple  imprisonment  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  one  thousand  Rupees,  or  with  both. 

The  explanation  of  the  word  ''  oath^'  should  be  referred  to 
(Section  51).  The  requisition  must  be  by  a  public  servant 
legally  competent  to  make  it  whether  the  proceeding  is  a 
judicial  or  any  other  proceeding. 

179.  Whoever,  being  legally  bound  to  state  the 

truth  on  any  subject  to  any 

BeftLsins  to  ssiswer  a  public  •■  i*  j.  o  ± 

Mrrant  imthoriied  to  ques-      publlC   SOrvant,    refuseS  tO  aU- 

*^^  swer  any  question  demanded 

of  him,  touching  that  subject  by  such  public  servant 
in  the  exercise  of  the  legal  powers  of  such  public 
servant,  shall  be  punished  with  simple  imprisonment 
for  a  tCTm  which  may  extend  to  six  months;  or  with 
fine  which  may  extend  to  one  thousand  Rupees,  or 
with  both. 

The  offence  consists  in  the  refusal  to  answer  a  question 
which  is  relevant  to  the  subject  concerning  which  the  public 


150  CHAPTEE  X. 

servant  is  authorized  to  enquire^  or  which  at  least  teaches  that 
subject. 

180.  Whoever  refuses  to  sign  any  statement  made 
Boftisinfftoiign  statement.    ^J  ^^  when  required  to  sign 

that  statement  by  a  public 
servant  legally  competent  to  require  that  he  shall 
sign  that  statement,  shall  be  punished  with  simple 
imprisonment  for  a  term  which  may  extend  to  three 
months,  or  with  fine  which  may  extend  to  five  hun- 
dred Rupees,  or  with  both. 

This  Section  is  not^  apparently,  meant  to  punish  persons  who 
furnish  returns  or  statements  which  are  imperfect  by  reason  of 
not  having  been  signed  :  nor  does  it  apply  to  any  case  in  which 
the  offence  is  merely  non-compliance  with  a  law  requiring  a 
statement  to  be  signed.  But  if  a  statement  made  to  an  officer 
of  justice  or  other  public  servant  is  put  into  writing,  and  the 
public  servant  being  '^  legally  competent  to  require*'  a  person  to 
sign  that  statement,  does  make  the  request,  the  refusal  to  sign 
under  such  circumstances  constitutes  the  offence  hereby  made 
punishable. 

Existing  laws  require  the  depositions  of  witnesses  to  be  sub- 
scribed by  them.  A  refusal  which  can  be  proved  to  proceed 
from  a  well  grounded  objection,  such  as  material  error  or 
mistake  in  the  writing  of  the  statement,  seems  not  to  be  pun- 
ishable. The  statement  must  be  such  a  one  as  the  accused 
person  can  be  legally  required  to  sign. 

181.  Whoever,  being  legally  bound  by  an  oath  to 
False  Btatement  on  oath  to    state  the  truth  ou  any  subject 

KJed'\S^*iaiSSi2&^  Tn  to  any  pubUe  servant  or  other 
^•*^  person  authorized  by  law  to 

administer  such  oath,  makes  to  such  public  servant 
or  other  jerson  as  aforesaid,  touching  that  subject, 
any  statement  which  is  false,  and  which  he  either 
knows  or  believes  to  be  false,  or  does  not  believe  to 
be  true,  shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  three 
years,  and  shall  also  be  liable  to  fine* 


OITBNCBS  AGAINST  PUBLIC   8BRVANTS.  161 

This  is  an  offence  similar  to  the  offence  defined  and  punished 
in  the  following  Chapter.  The  latter  Clause  of  Section  193^ 
appears  to  include  the  offence  for  which  the  present  Section 
proyidesa  punishment.  The  statement  must  be^  in  fact^  false^  and 
known  or  believed  to  be  false,  Ac.,  by  the  person  who  makes 
it ;  and  must  also  be  one  **  touching  the  subject^'  regarding  which 
the  public  servant  is  authorized  by  law  to  administer  an  oath. 

The  explanation  of  the  word  *'  oath''  should  be  referred  to 
(Section  51).  Where  the  law  substitutes  a  solemn  affirmation 
or  a  declaration,  the  offence  consists  in  the  breach  of  the  legal 
obligation  to  state  the  truth  which  it  imposes. 

182.    Whoever  gives  to  any  public  servant  any 

information  which  he  knows 
tJE?^<SS[S?iuS&,^*J^iSt-  or  believes  to  be  false,  intend- 
taj^^iSt^?S5S'ii°  '^'^    ing  thereby  to  cause,  or  know- 

ing  it  to  be  likely  that  he  will 
thereby  cause  such  public  servant  to  use  the  lawful 
power  of  such  public  servant  to  the  injury  or  annoy- 
ance of  any  person,  or  to  do  or  omit  anything  which 
such  public  servant  ought  not  to  do  or  omit,  if  the 
true  state  of  facts  respecting  which  such  information 
is  given  were  known  by  him,  shall  be  punished  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  six  months,  or  with  fine  which  may 
extend  to  one  thousand  Rupees,  or  with  both. 

llli$9trat%on8* 

(a)  A  informs  a  Magistrate  that  Z,  a  Police  officer,  subordinate 
to  such  Magistrate,  has  been  guilty  of  neglect  of  duty  or  miscon- 
dact,  knowing  such  information  to  be  false,  and  knowing  it  to  be 
likely  that  the  information  will  cause  the  Magistrate  to  dismiss  Z. 
A  has  committed  the  offence  defined  in  this  Section. 

(6)  A  falsely  informs  a  public  servant  that  Z  has  contraband  salt 
in  a  secret  place,  knowing  such  information  to  be  false,  and  knowing 
that  it  is  likely  that  the  consequence  of  the  information  will  be  a 
search  of  Z's  premises,  attended  with  annoyance  to  Z,  A  has  com- 
mitted the  offence  defined  in  this  Section. 

The  wide  meaning  of  the  word  ''  injury *'  should  be  borne 
in  mind  (Section  44).  The  intention  or  knowledge  with  which 
the  information  19  given,  most  determine  whether  this  offence 


152  CHAPTEE  X. 

has  been  committed  or  not*  An  honest  intention  to  promote 
the  ends  of  justice  may  cause  annoyaijce  or  injury,  but  if  the 
informant  acts  in  good  faith  he  will  not  be  punishable  for  such 
annoyance  or  injury.  Where  the  information,  however,  is  false,  • 
and  is  known  or  believed  by  the  giver  to  be  so,  an  honest  in* 
tent  can  scarcely  exist. 

183.  Whoever  oflfers  any  resistance  to  the  taking 
«  ,  *        X   ...  *  ^      .    ^^  ^^y  property  by  the  lawful 

Besistanoe  to  the  taking  of  ,-»   "  .\      ^n      ^         it  j_ 

property  by  the  lawful  autho-  authority  01  aUV  publlC  SOrvaut 
rlty  of  a  publio  servant.  •■  •  i.       •  j. 

knowing  or  having  reason  to 
believe  that  he  is  such  public  servant,  shall  be  punish- 
ed with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  one  thousand  Rupees,  or  with  both. 

Resistance  to  the  taking  is  punishable  when  the  taking  is  by 
lawful  authority.  As  to  the  right  of  private  defence  of  property, 
and  the  limitations  of  the  right  in  the  case  of  an  act  done  by  a 
public  servant,  or  by  the  direction  of  a  publio  servant,  see 
Sections  97,  99. 

184.  Whoever  intentionally  obstructs  any  sale  of 

property   oflfered  for  sale  by 

Obstmoting  sale  of  property      i-i     *i        a   i  j.i_       ^x  i* 

offered  for  safe  by  audborS^  of  the  lawful  authority  of  auy 
a  pubuo  servant.  public  scr vaut  as  such,  shall  be 

punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  one  month,  or  with  fine 
which  may  extend  to  five  hundred  Rupees,  or  with  both. 

Notices^  Sdc,  such  as  are  sometimes  given  at  public  sales  by 
persons  havings  or  claiming  in  good  faith  to  have,  a  right  or 
interest  in  the  property  to  be  sold,  would  not  be  deemed 
obstructions.  But  such  notices  if  clearly  not  bond  Jide,  and 
merely  for  the  purpose  of  injuring  the  sale,  might  be  so. 

186.    Whoever,  at  any  sale  of  property  held  by 
„,     ,       ^         ^,^  ,       the  lav^ul  authority  of  a  public 

niegal  porohase  or  bid  for  .  ^  '^      t     ^ 

properly  offwred  for  sale  by      servaut  aS  SUCh,    purchaSCS    Or 

autEority  of  a  publio  servant.      ,.,    «  \  , 

bidsforanypropertyon  account 
of  any  person,  whether  himself  or  any  other,  whom 


OFFENCES  AGAINST  PUBLIC  SERVANTS.  153 

he  knows  to  be  under  a  legal  incapacity  to  purchase 
that  property  at  that  sale,  or  bids  for  such  property, 
not  intending  to  perform  the  obligations  under  which 
he  lays  himself  by  such  bidding,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  one  month,  or  with  fine  which 
may  extend  to  two  hundred  Rupees,  or  with  both. 

Public  servants  unlawfally  buying  or  bidding  for  property 
are  severely  punished  by  Section  169. 

The  offence  punishable  by  the  present  Section,  or  an  offence 
of  the  like  kind,  is  punishable  by  existing  Regulations. 

186.  Whoever  voluntarily  obstructs  any  public 
_       _        ^  servant  in  the  discharge  of  his 

Obstmoting  public serTant  vi*     i»         x*  i.    ii\ 

in   diaoharge   of  bis   puWo      publlC  fuUCtlOUS,  ShallbC  pUU- 

ished  with  imprisonment  of 
^either  description,  for  a  term  which  may  extend  to 
three  months,  or  with  fine  which  may  extend  to  five 
hundred  Rupees,  or  with  both. 

The  obstruction  is  an  offence  when  it  is  caused  ''volun- 
tarily,^' that  is  by  means  intended  to  cause  it,  or  known  to  be 
likely  to  do  so.     (See  Section  89.) 

The  offences  of  assaulting  or  causing  hurt  to  a  public  ser- 
vant in  the  discharge  of  his  duty  are  punished  by  Sections 
152,  332,  333  and  353.  Threatening  a  public  servant,  and  in- 
•eulting  or  interrupting  him  in  a  judicial  proceeding,  are  provid- 
ed for  elsewhere.  Sections  189  and  228.  The  obstruction 
which  is  here  punished  may  be  by  any  act  voluntarily  done  or 
omitted  in  order  to  hinder  the  public  servant  in  executing 
his  duty,  although  such  act  is  not  directed  against  him  per- 
sonally. 

187.  Whoever,  being  bound  by  law  to  render  or 

furnish  assistance  to  any  pub- 

Omissioii  to   assist   Dublio      i  •  j     •        j  i  j  • 

eepvantwhen  bound  by  law      lic     SerVaut    lU    the    eXCCUtlOU 

togiva-ristanoo.  ^^  j^j^  p^^jj^  ^^^^^  intention- 

ally  omits  to  give  such  assistance,  shall  be  punished 
with  simple  imprisonment,  for  a  term  which  may 
ext^id  to  one  month,  or  with  fine  which  may  extend 


164  -CHAPTER  X. 

to  two  hundred  Rupees,  or  with  both ;  and  if  such 
assistance  be  demanded  of  him  by  a  public  servant 
legally  competent  to  make  such  demand  for  the  pur- 
poses of  executing  any  process  lawfully  issued  by  a 
Court  of  Justice,  or  of  preventing  the  commission  of 
an  offence,  or  of  suppressing  a  riot  or  affray,  or  of 
apprehending  a  person  charged  with  or  guilty  of  an 
offence,  or  of  having  escaped  from  lawful  custody, 
shall  be  punished  with  simple  imprisonment,  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  five  hundred  Rupees,  or  with  both. 

Persons  bound  to  furnish  information  to  public  servants  are 
punished  for  misconduct  by  Sections  176  and  1 77,  &c.  Persona 
bound  to  assist  public  servants  come  within  the  provisions  of 
the  present  Section.  The  offence  in  all  these  cases  arises  from 
the  breach  of  some  legal  obligation  on  the  accused  person  to 
give  his  assistance  to  a  public  servant. 

188,    Whoever,  knowing  that,  by  an  order  promul- 
gated by  a  public  servant  law- 

Bisobedienoe  %o   an  order      Xn  jj.  ix 

duly  promulgated  by  a  pubHo  lully  empowcred  to  promulgate 
servant.  ^^^^  ordcr,  hc  is  directed  to 

abstain  from  a  certain  act,  or  to  take  certain  order  with 
certain  property  in  his  possession  or  under  his  manage- 
ment, disobeys  such  direction,  shall,  if  such  disobe- 
dience causes  or  tends  to  cause  obstruction,  annoyance, 
or  injury,  or  risk  of  obstruction,  annoyance,  or  injury, 
to  any  persons  lawfully  employed,  be  pimished  with 
simple  imprisonment  for  a  term  which  may  extend 
to  one  month,  or  with  fine  which  may  extend  to  two 
hundred  Rupees,  or  with  both ;  and  if  such  disobe- 
dience causes  or  tends  to  cause  danger  to  human  life, 
health,  or  safety,  or  causes  or  tends  to  cause  a  riot 
or  affray,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to 
six  months,  or  with  fine  which  may  extend  to  one 
thousand  Rupees,  or  with  both. 

Explanation.     It  is  not  necessary  that  the  offends 
shoijild  intend  to  produce  harm,  or  contemplate  his 


MTENCES  AGAINST  PUBLIC   SERVANTS.  155 

disobedience  as  likely  to  produce  harm.  It  is  suffi- 
cient that  he  knows  of  the  order  which  he  disobeys, 
and  that  his  disobedience  produces,  or  is  likely  to 
produce  harm. 

Illustration* 

An  order  is  promulgated  by  a  public  servant  lawfully  empowered 
to  promulgate  such  order,  directing  that  a  religious  procession  shall 
not  pass  down  a  certain  street*  A  knowingly  disobeys  the  order, 
and  thereby  causes  danger  of  riot.  A  has  committed  the  offence 
defined  in  this  Section. 

There  are  acts  which  at  one  time  and  place  are  perfectly 
innocent,  and  which  at  another  time  .or  place  are  proper  sub- 
jects of  punishment.  It  is  not  always  possible  for  the  legisla- 
ture to  say  at  what  time  or  at  what  place  such  acts  ought  to 
be  punishable.  Disobedience  to  those  local  authorities  who 
are  empowered  to  forbid  such  acts,  is  by  this  Section  made 
punishable  as  an  offence. 

189.  Whoever  holds  out  any  threat  of  injury  to 
Thre«ft  of  injury  to  »imtoUo    ^ly  public  Servant,  or  to  any 

•®^*^*-  person  in  whom  he  believes 

that  public  servant  to  be  interested,  for  the  purpose 
of  inducing  that  public  servant  to  do  any  act,  or  to 
forbear  or  delay  to  do  any  act,  connected  with  the 
exercise  of  the  public  functions  of  such  public  servant, 
shall  be  punished  with  imprisonment  of  either  de- 
scription, for  a  term  which  may  extend  to  two  years, 
or  with  fine,  or  with  both. 

See  Sections  186  and  228. 

As  to  offences  against  the  person  of  a  public  servant,  see 
Sections  152,  332,  333,  353. 

190.  Whoever  holds  out  any  threat  of  injury  to 

any  person  for  the  purpose  of 
•n^*S?5fo^to*^fr£^^aS!  inducing  that  person  torefrain 
fioSSr^^?''**^***^''****  ^^  desist  from  making  a  le- 

gal application  for  prcJtection 
against  any  injury  to  any  public  servant  legally 
empowered  as  such  to  give  such  protection,  or  to 

X  2 


166  CHAPTER  XI. 

cause  such  protection  to  be  given,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  one  year,  or  with  fine,  or  with 
both. 

Mere  empty  threats,  which  are  often  effusions  of  passion, 
unattended  with  any  fixed  purpose  of  doing  harm,  should  be 
distinguished  from  threats  really  calculated  to  cause  the  person 
to  whom  they  are  held  out  to  act  otherwise  than  he  would  do  of 
his  own  free  will.  The  word  ''injury''  is  explained  by 
Section  44. 


Chapter  XI. 

OF  FALSE  EVIDENCE  AND  OFFENCES 
AGAINST  PUBLIC  JUSTICE. 


Many  things  which  interfere  with  the  administration  of  jus- 
tice are  made  punishable  in  the  preceding  Chapter  of  offences 
relating  to  contempts  of  the  lawful  authority  of  public  servants, 
and  elsewhere  in  the  Code.  This  Chapter  is  intended  to  provide 
for  certain  offences  of  that  description  which  either  do  not  pro- 
perly foil  within  other  Chapters,  or  which  call  for  more  sever© 
punishment,  because  committed  in  order  to  obstruct  public 
justice.  It  includes  false  evidence,  and  certain  other  offences 
against  justice. 

The  authors  of  the  Code  thought  it  inexpedient  to  use  the 
technical  terms  of  the  English  law  where  they  did  not  adopt 
its  definitions  and  materially  departed  from  it  in  substance. 
The  offence  of  attempting  to  impose  on  a  Court  of  Justice  by 
false  evidence,  is  therefore  not  designated  in  the  Code  by  the 
word  "perjury,''  which  is  used  in  the  English  law  and  in  the 
Begulations.  For  in  the  Code  the  definition  of  this  offence  is 
wider  in  its  scope  than  that  which  is  to  be  found  in  the  English 
law,  or  the  Begulations. 


FALSB  EVIDENCE.  167 

191.  Whoever  being  legally  bound  by  an  oath  or  by 

any  express  provision  of  law  to 
0ivin«f^aridance.  state  the  truth,  orbeingbound 

by  law  to  make  a  declaration  upon  any  subject,  makes 
any  statement  which  is  false  and  which  he  either 
knows  or  believes  to  be  false,  or  does  not  believe  to 
be  true,  is  said  to  give  false  evidence. 

Explanation  1.  A  statement  is  within  the  mean- 
ing of  this  Section,  whether  it  is  made  verbally  or 
otherwise. 

Explanation  2.  A  false  statement  as  to  the  belief 
of  the  person  attesting,  is  within  the  meaning  of  this 
Section,  and  a  person  may  be  guilty  of  giving  false 
evidence  by  stating  that  he  believes  a  thing  which 
he  does  not  believe,  as  well  as  by  stating  that  he 
knows  a  thing  which  he  does  not  know. 

niustraiions. 

(a)  A,  in  support  of  a  just  claim  which  B  has  against  Z  for  one 
thousand  Rupees,  falsely  swears  on  a  trial  that  he  heard  Z  admit  the 
justice  of  B's  claim.     A  has  given  false  evidence. 

(li)  Ay  being  bound  by  an  oath  to  state  the  trufch,  states  that  he 
believes  a  certiun  signature  to  be  the  handwriting  of  Z,  when  he  does 
not  believe  it  to  be  the  handwriting  of  Z.  Here  A  states  that  which 
he  knows  to  be  false,  and  therefore  gives  false  evidence. 

(e)  A,  knowing  the  general  character  of  Z's  handwriting,  states 
that  he  believes  a  certain  signature  to  be  the  handwriting  of  Z,  A 
in  good  faith  believing  it  to  be  so.  Here  A's  statement  is  merely  as 
to  his  belief^  and  is  true  as  to  his  belief,  and  therefore,  although  the 
signature  may  not  be  the  handwriting  of  Z,  A  has  not  given  false 
evidence. 

(J)  A,  being  bound  by  an  oath  to  state  the  truth,  states  that  he 
knows  that  Z  was  at  a  particular  place  on  a  particular  day,  not 
knowing  anything  upon  the  subject.  A  gives  false  evidence,  whether 
Z  was  at  that  place  on  the  day  named  or  not. 

(e)  A,  an  interpreter  or  translator,  gives  or  certifies  as  a  true  inter- 
pretation or  translation  of  a  statement  or  document  which  he  is 
bound  by  oath  to  interpret  or  translate  truly,  that  which  is  not,  and 
which  he  does  not  believe  to  be,  a  true  interpretation  or  translation. 
A  has  given  false  evidence. 

192.  Whoever  causes  any  circumstance  to  exist,  or 

^ ,     _,^  makes  any  false  entry  in  any 

Fabricating  &lse  evidence*       i^      i  *^  -i  i  *^ 

book  or  record,  or  makes  any 
document  containing  a  false  statement,  intending 


158  CHAPTER  XI. 

that  such  circumstance,  false  entry,  or  false  statement 
may  appear  in  evidence  in  a  judicial  proceeding,  or 
in  a  proceeding  taken  by  law  before  a  public  servant 
as  such,  or  before  an  arbitrator,  and  that  such  cir- 
cumstance, false  entry,  or  false  statement,  so  appear- 
ing in  evidence,  may  cause  any  person  who  in  such 
proceeding  is  to  form  an  opinion  upon  the  evidence, 
to  entertain  an  erroneous  opinion  touching  any  point 
material  to  the  result  of  such  proceeding,  is  said 
"to  fabricate  false  evidence.'* 

Illustrations, 

(a)  A  puts  jewels  into  a  box  belonging  to  Z,  with  the  intention 
that  they  may  be  found  in  that  box,  and  that  this  circumstance  may 
cause  Z  to  be  convicted  of  theft.     A  has  fabricated  false  evidence. 

(b)  A  makes  a  false  entry  in  hia  shop  book  for  the  purpose  of 
using  it  as  corroborative  evidence  in  a  Court  of  Justice.  A  has  fabri- 
cated false  evidence. 

(c)  A,  with  the  intention  of  causing  Z  to  be  convicted  of  a 
criminal  conspiracy,  writes  a  letter  in  imitation  of  Z*s  handwriting, 
purporting  to  be  addressed  to  an  accomplice  in  such  criminal  conspi- 
racy, and  puts  the  letter  in  a  place  which  he  knows  that  the  Officers 
of  the  Police  are  likely  to  search.     A  has  fabricated  false  evidence. 

The  framers  of  the  Code  thus  explained  the  provisions  on 
the  subject  of  fabricating  false  evidence.  '*  It  appears  to  us  that 
the  offence  which  we  have  designated  as  the  fabricating  of  false 
evidence  is  not  punished  with  adequate  severity  under  the 
English  and  other  systems  of  law.  This  may  perhaps  be 
because  the  offence,  in  its  ag^spravated  forms,  is  not  one  of  very 
frequent  occurrence  in  Western  countries.  It  is  notorious, 
However,  that  in  this  country  the  practice  is  exceedingly  com- 
mon, and  for  obvious  reasons.  The  mere  assertion  of  a  witness 
commands  far  less  respect  in  India  than  in  Europe,  or  in  the 
United  States  of  America.  In  countries  in  which  the  standard 
of  iporality  is  high,  direct  evidence  is  generally  considered  as 
the  best  evidence.  In  England  assuredly  it  is  so  considered, 
and  its  value  as  compared  with  the  value  of  circumstantial 
evidence  is  perhaps  overrated  by  the  great  majority  of  the 
population.  But  in  India  we  have  reason  to  believe  that  the 
case  is  different.     A  Jadge,  after  he  has  heard  a  transaction 


FALSE   BVrDENCE.  169 

related  in  the  same  manner  by  several  persons  who  declare 
themaelvea  to  be  eye-witnesses  of  it^  and  of  whom  he  knows  no 
harm^  often  feels  a  considerable  doubt  whether  the  whole  from 
beginning  to  end  be  not  a  fiction^  and  is  glad  to  meet  with 
some  circumstance,  however  slight,  which  supports  the  story, 
and  which  is  not  likely  to  have  been  devised  for  the  purpose  of 
supporting  the  story. 

Hence,  in  England,  a  person  who  wishes  to  impose  on  a 
Court  of  Justice  knows  that  he  is  likely  to  succeed  best  by 
perjury,  or  subornation  of  perjury.  But  in  India,  where  a 
judge  is  generally  on  his  guard  against  direct  false  evidence,  a 
more  artful  mode  of  imposition  is  frequently  employed.  A  lie 
is  often  conveyed  to  a  Court,  not  by  means  of  witnesses,  but 
by  means  of  circumstances,  precisely  because  circumstances 
are  less  likely  to  lie  than  witnesses.  These  two  modes  of 
imposing  on  the  tribunals  appear  to  us  to  be  equally  wicked, 
and  equally  mischievous.  It  will  indeed  be  harder  to  bring 
home  to  an  offender  the  fabricating  of  false  evidence  than  the 
giving  of  false  evidence.  But  wherever  the  former  offence  is 
brought  home,  we  would  punish  it  as  severely  as  the  latter. 
If  A  puts  a  purse  in  Z's  bag,  with  the  intention  of  causing  Z 
to  be  convicted  as  a  thief,  we  would  deal  with  A  as  if  he  had 
sworn  that  he  saw  Z  take  a  purse.  If  A  conceals  in  Z's  house 
a  paper  written  in  imitation  of  Z's  hand,  and  purporting  to  be 
a  plan  of  a  treasonable  conspiracy,  we  would  deal  with  A  as  if 
he  had  sworn  that  he  was  present  at  a  meeting  of  conspirators 
at  which  Z  presided. 

193.    Whoever  intentionally  gives  false  evidence  in 

Pnniahment  for  &1m  evl.      ^^7    StagC    of   a   judicial    pro- 

^^^'  ceeding,    or    fabricates    false 

evidence  for  the  purpose  of  being  used  in  any  stage 
of  a  judicial  proceeding,  shall  be  punished  with  im- 
prisonment of  either  description,  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to  fine ; 
and  whoever  intentionally  gives  or  fabricates  false 
evidence  in  any  other  case,  shall  be  punished  with 


160  CHAPTER   XI. 

imprisonment  of  either  description,  for  a  term  which 
may  extend  to  three  years,  and  shall  also  be  liable  to 
fine. 

Explanation  1.  A  trial  before  a  Court  Martial  or 
before  a  Military  Court  of  B/cquest  is  a  judicial  pro- 
ceeding. 

Explanation  2.  An  investigation  directed  by  law 
preliminary  to  a  proceeding-before  a  Court  of  Justice, 
is  a  stage  of  a  judicial  proceeding,  though  that  inves- 
tigation may  not  take  place  before  a  Court  of  Justice. 

Illustration. 

A,  in  an  inquiry  before  a  Magistrate  for  the  purpose  of  ascertain- 
ing whether  Z  ought  to  be  committed  for  trial,  makes  on  oath  a 
statement  which  he  knows  to  be  false.  As  this  enquiry  is  a  stage  of  a 
judicial  proceeding,  A  has  given  false  evidence. 

Explanation  3.  An  investigation  directed  by  a 
Court  of  Justice  according  to  law,  and  conducted  un- 
der the  authority  of  a  Court  of  Justice,  is  a  stage  of  a 
judicial  proceeding,  though  that  investigation  may 
not  take  place  before  a  Court  of  Justice. 

Illustration. 

A,  in  an  enquiry  before  an  Officer  deputed  by  a  Court  of  Justice 
to  ascertain  on  the  spot  the  boundaries  of  lands,  makes  on  oath  a 
statement  which  he  knows  to  be  false.  A&  this  enquiry  is  a  stage  of 
a  judicial  proceeding,  A  has  given  false  evidence. 

The  giving  or  fabricating  false  evidence  must  always  be  a 
grave  offence ;  but  it  is  an  offence  of  which  there  are  numerous 
grades^  some  of  which  may  be  easily  defined.  The  Code  dis- 
tinguishes, as  will  be  seen  by  subsequent  Sections,  between  that 
kind  of  false  evidence  which  produces  great  evils,  and  that  kind 
of  false  evidence  which  produces  comparatively  slight  evils. 
It  also  marks  a  difference  between  the  offence  of  attempting 
to  impose  by  false  evidence  on  a  Court  of  Justice,  and  the 
like  offence  committed  in  a  proceeding  not  judicial. 

This  Section  provides  the  ordinary  punishments  for  false 
evidence  in  judicial,  and  in  other  proceedings ;  the  former  being 
imprisonment  with  fine  for  seven  years,  the  latter  for  three 
years. 


TALSE  EVIDENCE.  161 

^'  Whoever  intentionally  gives,"  &o.  To  sapport  a  charge 
under  this  first  Clause  of  the  Section  it  is  necessary  to  prove  :— 
1,  The  giving  of  false  evidence;  2,  That  it  is  given  in  a  judicial 
proceeding ;  3,  The  corrupt  intention. 

1.  The  giving  &q*  There  must  be  a  statement,  verbal, 
written,  or  otherwise: — the  statement  must  be  made  under 
some  obligation  of  law  to  state  the  truth,  whether  an  oath 
or  any  affirmation  or  declaration  substituted  for  it  in  judicial 
proceedings,  and  made  equivalent  to  an  oath  : — and  lastly  the 
statement  must  be  false.  Where  these  three  things  concur, 
'^  false  evidence"  is  given. 

The  falsehood  is  ordinarily  of  this  kind,  that  a  man  states  thai 
concerning  some  fact  or  thing,  which  he  knows  to  be  false ; 
or  that  he  states  that  which  he  believes  to  be  false.  The  lie  in 
these  cases  concerns  something  respecting  which  the  false 
witness  has  actual  knowledge  or  belief. 

But  if  he  makes  some  statement  touching  a  matter  as  to 
which  he  has  no  knowledge,  and  has  formed  no  belief,  the  false- 
hood is  of  a  different  kind,  but  it  is  equally  a  falsehood.  And 
such  a  statement  is  morally  a  false  statement  whether  what  he 
has  stated  chances  to  be  in  fact  true  or  not — for  it  is  the 
knowledge  and  belief  of  the  declarant  that  should  be  considered, 
and  he  has  stated  as  truth  that  which  he  does  not  know  to  be 
iarue,  or  about  which  he  has  not  formed  any  belief. 

But,  according  to  the  definition  of  the  offence  of  giving  false 
evidence,  a  person  is  not  punishable  by  this  Code  if  what  he 
states  is  true  in  fact,  notwithstanding  that  he  may  have  no 
knowledge  or  belief  on  the  subject  when  he  makes  the  state- ^ 
ment.  If  indeed  his  statement  goes  beyond  a  bare  assertion  of 
the  fact,  and  extends  to  the  falsely  asserting  that  he  knows  or 
believer  the  fact  to  be  so,  as  in  the  case  supposed  in  the  illustra- 
tion fdj  to  Section  191,  this  falsehood  comes  within  the  legal 
definition  of  the  offence  :  for  although  Z  was  at  the  place  on  the 
day  named,  A  did  not  know  this,  and  having  sworn  that  he  did 
know  ity  he  has  made  a  false  statement  concerning  his  knowledge. 

As  to  the  mode  in  which  the  lie  is  told,  it  is  the  same  whether 
Y 


162  CHAPTEK  XI. 

the  false  statement  is  positively  advanced  or  whether  it  is  only 
given  as  the  belief  of  the  person  making  it.  Bat  the 
proof  of  the  offence  in  the  latter  case  may  be  more  di£Bicalt, 
since  not  merely  the  untrath  of  the  fact  must  be  shewn,  but  also 
the  non-existence  of  the  belief  stated  touching  snch  fact*  If 
the  matter  sworn  to  is  one  of  opinion  only,  as  a  medical  or 
scientific  opinion,  it  cannot  perhaps  be  made  the  foandation 
of  a  charge  of  this  sort.  Yet  if  it  assert  a  fact  or  draw  an 
inference  evidently  false,  as  for  example,  if  a  doctor  swears 
that  a  person  is  unfit  to  travel  who  is  in  perfect  health, — or  an 
architect  swears  that  a  house  is  ruined  which  is  in  good  con- 
ditioij,' — the  person  giving  the  opinion  would  probably  be  crimi- 
nally liable  for  such  false  evidence. 

2.  The  false  evidence  must  be  given  in  a  stage  of  a  judicial 
proceeding.  The  explanations  and  illustrations  sufficiently 
show  what  is  a  judicial  proceeding  and  what  is  a  stage  of  such 
a  proceeding. 

3.  The  false  evidence  must  be  intentionally  given.  It  will  be 
observed  that  it  is  no  part  of  the  definition  of  the  offence  that 
the  evidence  should  relate  to  a  thing  material  to  the  result  of 
the  proceeding.  Evidence  which  is  altogether  foreign  to  the 
subject  of  the  enquiry,  and  which  does  not  tend  to  forward 
the  enquiry  as  bearing  directly  on  the  matter  in  dispute  or  on 
the  credit  of  the  testimony  adduced,  may  therefore  be  punished, 
if  false,  under  the  present  Section*  But  the  corrupt  intention 
to  swear  falsely  must,  it  seems,  exist.  In  this,  as  in  other  cases, 
the  Court  may  infer  the  intention  from  the  circumstances. 
If,  having  regard  to  all  the  circumstances  of  the  case,  it 
appears  that  the  falsehood  was  not  wilful,  but  rather  proceed- 
ed from  inadvertence  or  a  mistake  as  to  the  true  nature  of  the 
question,  the  evidence  could  not  be  considered  to  be  false 
evidence  intentionally  given. 

''Or  fabricates  fake  evidence  for  the  purpose,  Ac.'*  To 
support  a  charge  under  this  head  it  is  necessary  to  prove  the 
intentional  fabrication,  and  that  it  is  for  the  purpose  of  being 
used  in  some  stage  of  a  judicial  proceeding. 


FALSE   EVIDENCE.  168 

To  ''  fabricate  false  evidence^'  is  defined  by  Section  192.  And 
it  most  be  remembered  that  an  intention  to  mislead  toaching  a 
point  material  to  the  result  of  a  jadidal  proceeding  is  made 
part  of  the  definition. 

To  support  a  charge  nnder  the  latter  clanse  of  the  Section^ 
the  general  requisites  are  the  same  as  those  already  mentioned^ 
except  that  the  proceeding  in  this  case  is  not  a  judicial  one. 
It  is  equally  essential  to  show  that  the  false  statement  was  one 
made  nnder  the  sanction  of  law,  whether  upon  oath  or  on  a 
declaration  which  the  law  allows  to  be  substituted  for  an  oath 
in  matters  not  judicial. 

194.  Whoever  gives  or  fabricates  false  evidence,  in- 
oiving  or  fabrioftting  faua    tending  thereby  to  cause,  or 

SS??Si;;?c^o»iX^^    knowing  it  to  be  likely  that 
^^^'  he  will  thereby  cause,  any  per- 

son to  be  convicted  of  an  oflFenoe  which  is  capital  by 
this  Code,  shall  be  punished  with  transportation  for 
life,  or  with  rigorous  imprisonment  for  a  term  which 
may  extend  to  ten  years,  and  shall  also  be  liable 
If  innooent  person  be  there-  to  fine  ;  and  if  an  innocont 
by  ooniricted  and  executed.  persoubo  convictod  and  execut- 
ed in  consequence  of  such  false  evidence,  the  person 
who  gives  such  false  evidence  shall  be  punished  either 
with  death  or  the  punishment  hereinbefore  described. 

This  offence  ranks  with  murder  and  attempt  to  murder  ac- 
cording to  the  result.  The  offences  which  the  Code  makes 
capital  are  mentioned  at  page  33. 

195.  Whoever  gives  or  fabricates  false  evidence, 
^-,        ^  W-.  *.     ^.       intending  thereby  to  cause,  or 

OiTinsor  fabrioatlnff  fUse  i  •        -x  j.    i.     im     i     xt.    j.  -l 

eridenoe  with  IntSattopro-  knOWinff  it  tO  be  llkolv  that  he 
core  conviotion  of  an  offenoe  .ii  j  i    ^   i  *^ 

ganlabable  with  tranaporta-  WUl  thereby  CaUSC,  aUV  perSOU 

tton  or  imprisonment.  j.     i.  •   j.    j       i*  iv 

to  be  convicted  of  an  oflrence 
which  by  this  Code  is  not  capital,  but  punishable  with 
transportation  for  life,  or  imprisonment  for  a  term  of 
seven  years  or  upwards,  shall  be  punished  as  a  person 
convicted  of  thatoffence  would  be  liable  to  be  punished. 
Y  2 


164  CHAPTEE  XI. 

Illustration. 
A  gives  fabe  evidence  before  a  Court  of  Justice,  intending  thereby 
to  cause  Z  to  be  convicted  of  a  dacoitj.  The  punishment  of  dacoit  j 
is  transportation  for  life,  or  rigorous  imprisonment  for  a  term  which 
may  extend  to  ten  years,  with  or  without  fine.  A,  therefore,  is 
liable  to  such  transportation  or  imprisonment,  with  or  without  fine. 

196,     Whoever  corruptly  uses  or  attempts  to  use 

TOngevidenoaknowntoba     ^s  true  or  genuine  evidence, 
'•^•'  any  evidence  which  he  knows 

to  be  false  or  fabricated,  shall  be  punished   in  the 
same  manner  as  if  he  gave  or  fabricated  false  evidence. 

This  Section  applies  to  those  who  make  nse  of  such  evidence 
as  is  made  punishable  by  the  preceding  Sections.  It  relates 
not  only  to  fabricated  evidence  but  also  to  such  evidence  as  is 
given  or  ofiered  by  the  mouth  of  a  false  witness.  It  may  in- 
clude also  the  case  of  suborning  false  witnesses  and  attempting 
to  use  their  evidence.  But  a  mere  inciting  others  by  ofiers 
of  reward  to  bear  false  witness  or  to  fabricate  evidence,  ap- 
pears not  to  fall  within  these  words ;  there  must  be  a  use  of  or 
an  attempt  or  oflfer  to  use  the  evidence  to  a  judicial  proceeding 
or  on  some  other  occasion.  The  word  "  corruptly,''  which  does 
not  occur  in  the  preceding  Sections,  is  probably  used  here  to 
denote  that  those  whose  duty  it  is,  not  to  judge  of  the  credibi* 
Uty  of  evidence,  but  to  submit  it  for  the  consideration  of 
judicial  and  other  functionaries  on  behalf  of  their  clients,  do 
not  incur  the  penalties  of  using  false  evidence. 

197.  Whoever  issues  or  signs  any  certificate  requir- 

issniM  OP  .ignnig  a  false    ^^  by  law  to  be  givcu  or  sign- 

oeptifloa^e.  q^^  q,.  relating  to  any  fact  of 

which  such  certificate  is  by  law  admissible  in  evidence, 
knowing  or  believing  that  such  certificate  is  false  in 
any  material  point,  shall  be  punished  in  the  same 
manner  as  if  he  gave  false  evidence. 

Numerous  laws  require  a  certificate  of  some  matter  to  be  given 
and  many  make  a  certificate  admissible  as  evidence  of  some  fact. 

The  offence  of  certifying  in  any  of  these  and  the  like  cases, 
knowing  or  believing  that  the  certificate  is  false,  is  put  on  the 
same  footing  as  the  offence  of  giving  false  evidence.     But  it 


FALSE   EVIDENCE.  165 

will  be  observed  that  tbe  certificate  must  be  false  in  a  material 
point.  An  error  in  a  name  or  date^  accidental  and  not  intended 
for  any  evil  purpose,  or  a  false  statement  of  some  irrelevant 
matter,  is  not  within  the  Section.  The  oflFence  of  forging  a 
certificate  is  not  here  contemplated,  but  that  of  making  or 
issning  a  certificate  which,  being  valid  and  suflScient  in  other 
respects,  is  yet  false  in  a  material  point.  The  issuing  or  signing 
must  therefore  be  by  the  person  or  oflScer  authorised  or  believed 
to  be  authorised  to  certify.  The  word  "  issue^'  means  some- 
thing different  from  using.  It  is  the  putting  forth  for  the 
purpose  of  being  nsed,  and  is  preliminary  to  it. 

198.  "Whoever  corruptly  uses  or  attempts  to  use 
-- .  ^         ^,-   ^      any  such  certificate  as  a  true 

ITsiiis  as  a  true  oertifloate  ^  •  r*       i        i  •  ^  i 

g^^^tobefaiaoinama-     Certificate,  knowmg  the  same 

to  be  false  in  any  material 
point,  shall  be  punished  in  the  same  manner  as  if  he 
gave  false  evidence. 

See  the  notes  to  Sections  196,  197. 

199.  "Whoever,  in  any  declaration  made  or  sub- 
-, ,      ^  ^       ^       ,    ,      scribed  by  him,  which  declara- 

False   statement   made   in       . .  v,         x      /»   t      j  • 

any  declaration  ^ch  is  by  tlOU  aUV  Court  Of  J UStlCC,  Or 
law  receivable  as  evidenoe.  %  ,.  .  ', 

any  public  servant  or  other 
person,  is  bound  or  authorized  by  law  to  receive  as 
evidence  of  any  fact,  makes  any  statement  which  is 
false  and  which  he  either  knows  or  believes  to  be  false, 
or  does  not  believe  to  be  true,  touching  any  point 
material  to  the  object  for  which  the  declaration  is 
made  or  used,  shall  be  punished  in  the  same  manner 
as  if  he  gave  false  evidence. 

Snch  declarations  as  those  mentioned  in  Sections  27,  118, 
and  164  of  the  Civil  Procedure  Code  (Act  VIII.  of  1859)  ap- 
pear  to  be  referred  to.  Such  offences  will  henceforward  be 
punishable  by  this  Code.     See  Section  24  of  Act  VIII.  of  1 859- 

200.  Whoever  corruptly  uses  or  attempts  to  use 
Uiing  as  true  any  such  de-    ^s  truc  any  such  declaration, 

olaration  known  to  be  false.         kuowiug  the   SamO  to   be  falsC 


166  CHAPTER  XI. 

in  any  material  point,  shall  be  punished  in  the  same 
manner  as  if  he  gave  false  evidence. 

Explanation.  A  declaration  which  is  inadmissible 
merely  upon  the  ground  of  some  informality,  is  a 
declaration  within  the  meaning  of  Sections  199 
and  200, 

The  three  following  Sections  provide  for  the  punishment  of 
certain  offences  against  public  justice  by  which  the  detection  of 
crime  and  the  apprehension  of  offenders  is  frustrated.  It  is 
the  duty  of  every  good  subject  of  the  State  to  aid  in  the  due 
administration  of  the  laws.  The  discharge  of  this  duty  must, 
in  the  absence  of  any  direct  legal  obligation,  rest  in  a  great 
degree  upon  each  man^s  sense  of  the  duty  which  lies  on  him. 
But  by  various  laws,  special  duties  in  regard  to  the  detection  of 
crime  are  imposed  on  landholders  and  certain  other  persons. 
All  persons,  however,  if  not  bound  by  express  provision  of  law 
to  aid  in  the  detection  of  offenders,  are  at  least  under  this 
legal  obligation,  that  they  shall  not  obstruct  or  mislead  others 
in  the  pursuit,  if  they  remain  themselves  inactive. 

Where  the  offence  against  public  justice  proceeds  beyond 
such  obstructions  and  omissions  as  are  made  punishable  by 
these  Sections,  and  amounts  to  a  harbouring  or  assisting  an 
offender,  it  is  punishable  by  subsequent  Sections  of  this  Chapter. 

201.    Whoever,  knowing  or  having  reason  to  helieve 
,    that  an  offence  has  been  com- 

Oausing    diaappearanoe   of  .   ,     ,  .,  « 

evidence  of. an  offence. com-       mittcd,  CaUSCS  anV  CVldcnce  01 
mitted  or  giving  false  infor-       . ,  '        .      .  i  i-t     j.     i» 

mation  touching  it  to  Bcreen    the  commission  01  that  ojotence 
theoffen  er.  ^^  disappear,  with  the  inten- 

tion of  screening  the  oflFender  from  legal  punishment, 
or  with  that  intention  gives  any  information  respect- 
ing the  oflFence  which  he  knows  or  believes  to  be  false, 
,  ,  ^  shall,  if  the  oflFence  which  he 

If  a  capital  offence.  ,  ,     t  j.     -l  -l 

knows  or  believes  to  have  been 
committed  is  punishahle  with  death,  be  punished  with 
imprisonment  of  either  description,  for  a  term  which 


FALSE   EVIDENCE.  167 

may  extend  to  seven  years,  and  shall  also  be  liable  to 

If  punishable  with  trans-      fi^®  5      ^^^    ^    ^^^    OflFence     is 

portafion.  punishable  with  transportation 

for  life,  or  with  imprisonment  which  may  extend  to  ten 
years,  shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  three 
years,  and  shall  also  be  liable  to  fine ;  and  if  the 
ifpunishabie  with  less  than  oflFcnce  is  punishable  with  im- 
ten  years' imprisonment.  prisonmcnt  for  any  term  not 

extending  to  ten  years,  shall  be  punished  with  impri- 
sonment of  the  description  provided  for  the  oflFence, 
for  a  term  which  may  extend  to  one-fourth  part  of  the 
longest  term  of  the  imprisonment  provided  for  the 
offence,  or  with  fine,  or  both. 

Illustration, 

A,  knowiDg  that  B  has  murdered  Z,  assists  B  to  hide  the  hody 
with  the  intention  ef  screening  B  from  punishment.  A  is  liable  to 
imprisonment  of  either  description  for  seven  years,  and  also  to  fine. 

OfTenoes  of  three  grades  are  specified,  with  regard  to  each  of 
which  the  offence  punishable  under  this  Section  has  its  appro- 
priate punishment  provided.  The  substantial  fact  that  some 
offence  has  been  committed,  and  the  knowledge  or  reason  for 
belief  that  an  oflence  has  been  committed,  must  of  course  be 
proved  to  the  satisfaction  of  the  Court, — since  these  are  both 
essential  parts  of  the  offence  here  defined.  Frequently  the  ap- 
prehension and  conviction  of  the  principal  offender  will  remove 
all  doubt  concerning  the  particular  offence  committed.  In  such 
a  case  only  the  circumstances  remain  to  be  shewn  from  which 
knowledge  or  belief  is  to  be  proved  or  inferred  against  the  person 
who  is  charged  under  the  present  Section^  Where  the  principal 
offender,  by  flight  or  otherwise,  has  escaped  from  justice,  it  will 
be  necessary  to  satisfy  the  Court  by  reasonable  proof  that  some 
person,  whether  the  person  who  has  fled  or  another,  has  com- 
mitted the  offence  which  the  accused  is  charged  with  endea- 
vouring to  conceal. 

The  criminal  intention  to  screen  the  offender  from  punish- 
ment is  a  necessary    part    of   this  offence.    Therefore    an 


168  CHAPTER  XI. 

accidental  or  even  mischievoas  effacing  of  marks^  or  any 
thing  else  done  thonghtlessly  or  in  jest^  is  not  sufficient.  Foot- 
marks may  be  effaced^  stains  of  blood  washed  out^  &c*,  without 
necessarily  incurring  the  guilt  of  screening  an  offender.  Sup- 
pose a  culpable  homicide  has  been  committed^  and  there  is 
merely  evidence  to  show  that  the  accused,  a  Hindoo,  assisted  in 
burning  the  dead  body.  This  act,  being  lawful  and  usual  among 
Hindoos,  does  not  of  itself  and  without  the  aid  of  other  circum- 
stances in  any  degree  tend  to  criminate  him. 

Whether  the  individual  offender  is  known  or  unknown  to  the 
person  charged  under  this  Section,  he  is  guilty,  if  he  obstmota 
the  course  of  justice  in  the  manner  indicated. 

'^  Causes  any  evidence  of,  &c.''  The  illustration  appended 
puts  the  case  where  a  circumstance  exists  showing  that  a  crime 
has  been  committed ;  the  dead  body,  bearing,  it  may  be  supposed 
traces  of  violence,  and  therefore  of  itself  testifying  that  an  of- 
fence has  been  committed,  is  hid.  As  the  causing  a  circumstance 
to  exist  which  is  intended  to  mislead  the  judge  in  the  formation 
of  an  opinion  is  a  fabrication  of  false  evidence,  and  is  punishable, 
—so  the  causing  any  thing  to  disappear  which  tends  to  the  ap- 
prehension and  conviction  of  the  offender  is  an  offence,  when 
the  object  is  to  defeat  justice.  It  is  not  clear  whether  these 
words  include  (though  they  appear  to  do  so)  all  testimony  of 
whatsoever  description,  such  as  oral  and  written  testimony,  as 
well  as  the  evidence  afforded  by  the  existence  of  things. 

202.    Whoever,  knowing  or  having  reason  to  be- 
lieve that  an  oflfence  has  been 
ffive i^rmatioxiof  ua offenoe    Committed, intentionally  omits 

Byapersonboundtoinlbrm.       ^^    ^.^^    ^^    information    rC- 

specting  that  oflFenee  which  he  is  legally  bound  to 
give,  shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  six 
months,  or  with  fine,  or  with  both. 

This  Section  punishes  the  illegal  omissions  of  those  who  are 
by  some  law  bound  to  give  information,  when  such  omissions 


OFFENCES  AGAINST  PUBLIC  JUSTICE.  169 

are  intentional.  The  knowledge  or  belief  that  some  offence 
has  been  committed  is  part  of  the  definition. 

203.  Whoever,  knowing  or  having  reason  to  be- 
GiTingftOBeinfopmauonre-    lievo  that  an  offenco  has  been 

•peotins  an  offence  oonunit-  ...     •■        •  .    « 

ted.  committed,  gives  any  informa- 

tion respecting  that  oflfence  which  he  knows  or  believes 
to  be  Mse,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to  two 
years,  or  with  fine,  or  with  both. 

A  person  who  under  sach  circumstances  volunteers  informa- 
tion which  he  knows  or  believes  to  be  false,  obstructs  justice, 
and  is  punished,  whether  any  intention  to  screen  the  offender 
can  be  proved  against  him  or  not,  and  whatever  be  the 
offence  which  the  latter  has  committed. 

204.  Whoever  secretes  or  destroys  any  document 

which  he  may  be  lawfully  com- 

Destmotion  of  document  to  n     i  x  i  •  i 

prerent    ito    production    as      peiiecl  tO  prOQUCe    aS   CVldcnce 

*^     ^'  in  a  Court  of  Justice,  or  in  any 

proceeding  lawfully  held  before  a  public  servant,  as 
such,  or  obliterates  or  renders  illegible  the  whole  or 
any  part  of  such  document  with  the  intention  of  pre- 
venting the  same  from  being  produced  or  used  as  evi- 
dence before  such  Court  or  public  servant  as  aforesaid, 
or  after  he  shall  have  been  lawfully  summoned  or 
required  to  produce  the  same  for  that  purpose,  shall 
be  punished  with  imprisonment  of  either  description  > 
for  a  term  which  may  extend  to  two  years,  or  with 
fine  or  with  both. 

Whether  the  proceeding  is  of  a  civil  or  criminal  nature,  this 
section  applies.  The  words  ''  document,''  "  Court  of  Justice," 
and  "  public  servant,''  are  explained  by  Sections  20,  21^ 
and  29. 

There  is  no  question  here  of  the  materiality  of  the  evidence. 
Whether  material  or  not,  it  must  not  be  secreted  or  destroyed 
to  evade  production  in  a  judicial  or  other  proceeding,  if  the 
production  may  lawfully  be  compelled. 


170  CHAPTER  XI. 

206.     Whoever  falsely  personates  another,  and  in 

False  personation  fbr  the     such  assumed  character  makes 

f^lV^r^*^*'''^'^^*'^^"     any  admission  or  statement,  or 

confesses  judgment,  or  causes 
any  process  to  be  issued,  or  becomes  bail  or  security, 
or  does  any  other  act  in  any  suit  or  criminal  prosecu- 
tion, shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  three 
years,  or  with  fine,  or  with  both. 

The  oflfence  punished,  is  not  merely  cheating  by  usiag  a 
fictitious  name,  but  by  falsely  assuming  to  be  some  other  real 
person  and  in  that  character  making  an  admission,  &c. 

'^  Or  causes  any  process  to  be  issued.*'  These  words  are 
applicable  to  the  case  of  genuine  process  being  issued  by  the 
offender  in  an  assumed  character ;  as  if  he  personates  A,  a 
creditor  of  B,  and  causes  a  summons  in  A's  name  to  issue  against 
B  for  the  recovery  of  the  debt  due  to  A.  Suppose  a  person 
procures  blank  forms  of  summons  or  other  process,  and  signs 
them  with  the  signature  of  the  officer  of  the  Court,  and 
afterwards  causes  them  to  be  issued :  this  seems  to  be  an 
offence  within  this  Section.  The  offence  here  defined  must, 
it  appears,  concern  some  act  done  "  in  a  civil  suit  or  criminal 
prosecution/'  An  intention  to  injure  or  defraud  is  not  made 
part  of  the  definition  and  therefore  need  not  be  proved. 

206.    Whoever    fraudulently    removes,    conceals, 

transfers    or  delivers   to    any 

J^^^^^^vSi^lJti  to^re".    person  any  property  or  any  in- 

ItW^^^nSf^t^^fl:^''    terest  therein,  intending  there- 

by  to  prevent  that  property  or 
interest  therein  from  being  taken  as  a  forfeiture  or 
in  satisfaction  of  a  fine,  under  a  sentence  which  has 
been  pronounced,  or  which  he  knows  to  be  likely  to 
be  pronounced  by  a  Court  of  Justice  or  other  com- 
petent authority,  or  from  being  taken  in  execution  of 
a  decree  or  order  which  has  been  made,  or  which  he 
knows  to  be  likely  to  be  made  by  a  Court  of  Justice 
in  a  Civil  suit,  shall  be  punished  with  imprisonment 
of  either  description,  for  a  term  which  may  extend  to 
two  years,  or  with  fine,  or  with  both. 


OFFENCES   AGAINST  PUBLIC   JUSTICE.  171 

The  owner  of  property  is,  ordinarily  speaking,  by  virtue  of  bis 
ownersbip,  free  to  sell  it  or  to  give  it  away  as  be  sees  fit.  And 
all  other  persons  have  equally  the  right  to  receive  it  from  him 
by  way  of  purchase  or  gift.  But  the  law  has  provided  for  many 
ofiences  and  contraventions  of  the  law,  punishment  by  fine,  or 
forfeiture  of  property.  Thus  by  some  Sections  of  this  Code  it  is 
enacted  that  upon  conviction  of  certain  offences  the  offender 
shall  forfeit  all  or  a  portion  of  his  property ;  by  others  it  is  en- 
acted that  such  forfeiture  may  be  awarded  by  the  Court  as  part 
of  the  punishment.  Laws  relating  to  Customs  Duties  usually 
make  confiscation  of  goods  the  punishment  of  any  contravention 
of  their  provisions.  And  the  ordinary  sanction  of  a  law  is  the 
imposition  of  a  fine  for  the  breach  of  it, — recoverable  usually  by 
distress  and  sale  of  the  offender's  property.  In  all  such  cases, 
and  also  in  the  case  of  civil  suits,  the  general  law  of  the 
country  must  determine  the  legal  eifect  of  an  ordinary  transfer 
of  property  while  suits  or  other  proceedings  are  pending,  the 
result  of  which  may  establish  a  claim  against  or  otherwise 
affect  such  property. 

The  penal  provision  in  this  Section,  which  does  not  interfere 
with  those  of  the  civil  law  concerning  the  recovery  of  the  pro- 
perty, applies  when  there  is  an  intention  to  defraud  (see  Sec- 
tion 25).  A  fraudulent  removal,  concealment,  &c.,  with  intent 
to  withdraw  property  from  an  impending  seizure  under  process 
of  a  Court  of  law  or  of  some  competent  authority,  is  the  offence 
made  punishable.  This  is'  not  only  a  grave  offence  against 
public  justice,  but  a  serious  injury  to  the  suitor,  the  object  of 
whose  suit  is  defeated  or  retarded  thereby. 

The  offence  may  it  seems  be  committed  by  persons  other 
than  the  owners  of  the  property. 

207-     Whoever  fraudulently  accepts,  receives,  or 

claims  any  property  or  any 
t/t?p??itnt ttJiiSe?fi  interest  therein,  kno^ng  that 
?idteOT^  ""'^^^''^"^'''''''^    ^^  l^as  no  right  or  rightful 

claim  to  such  property  or  in-, 
terest,  or  practises  any  deception  touching  any  right 

z  2 


172  CHAPTER   XI. 

to  any  property  or  any  interest  therein,  intending 
thereby  to  prevent  that  property  or  interest  therein 
from  being  taken  as  a  forfeiture  or  in  satisfaction  of  a 
fine,  under  a  sentence  which  has  been  pronounced,  or 
which  he  knows  to  be  likely  to  be  pronounced  by  a 
Court  of  Justice,  or  other  competent  authority,  or 
from  being  taken  in  execution  of  a  decree  or  order 
which  has  been  made,  or  which  he  knows  to  be  likely 
to  be  made  by  a  Court  of  Justice  in  a  Civil  suit,  shall 
be  punished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  two  years,  or  with 
fine,  or  with  both. 

See  the  previous  Section  and  note.  The  receiver  of  the  pro- 
perty, if  he  receives  it  with  intent  to  defraud,  is  here  made 
punishable. 

208.    Whoever  fraudulently  causes  or  suffers  a 

Fraudulently  ■ufteringade.    dccrec  or  Order  to  be  posscd 

oree  for  a  sum  not  due.  agaiust  him  at  the  suit  of  any 

person  for  a  sum  not  due,  or  for  a  larger  sum  than  is 
due  to  such  person,  or  for  any  property  or  interest 
in  property  to  which  such  person  is  not  entitled,  or 
fraudulently  causes  or  suffers  a  decree  or  order  to  be 
executed  against  him  after  it  has  been  satisfied,  or 
for  any  thing  in  respect  of  which  it  has  been  satisfied, 
shall  be  punished  with  imprisonment  of  either  descrip- 
tion, for  a  term  which  may  extend  to  two  years,  or 
with  fine,  or  with  both* 

A  institutes  a  suit  against  Z.  Z,  knowing  that  A  is  likely  to  ob- 
tain a  decree  against  him,  fraudulently  suffers  a  judgment  to  pass 
against  him  for  a  larger  amount  at  the  suit  of  B,  who  has  no  just 
claim  against  him,  in  order  that  B,  either  on  his  own  account  or  for 
the  benefit  of  Z,  may  share  in  the  proceeds  of  any  sale  of  Z's  property 
which  may  be  made  under  A*8  decree.  Z  has  committed  an  oifenoe 
under  this  Section. 

209*    Whoever  fraudulently  or  dishonestly,  or  with 

j>aise  ^1^*"  im  a  Court  of    intent  to  injure  or  annoy  any 

*"***^  person,  makes  in  a  Court  of 

Justice  any  claim  which  he  knows  to  be  false,  shall  be 

punished  with  imprisonment  of  either  description,  for 


OFFENCES  AGAINST  PUBLIC   JUSTICE.  173 

a  term  which  may  extend  to  two  years,  and  shall  also 
he  liable  to  fine. 

Not  only  mnst  the  claim  be  false  within  the  knowledge  of  the 
person  making  it,  but  the  object  of  it  must  be  to  defraud,  to 
cause  wrongful  loss  or  wrongful  gain,  to  injure  or  to  annoy. 
See  Sections  24,  25,  and  44.  A  claim  by  filing  a  plaint,  or 
a  claim  made  to  property  attached  before  judgment  or  taken 
in  execution  of  a  decree,  are  instances  of  the  claims  to  which 
this  Section  appears  to  refer. 

It  is  not  an  innovation  in  India  to  punish  a  person  who  has 
brought  a  suit  for  the  purpose  of  annoyance.  By  the  Regula- 
tions, a  Judge  is  authorized  when  a  suit  appears  frivolous, 
vexatious,  or  groundless,  to  fine  the  plaintiff  and  to  commit  him 
to  close  custody  till  he  pays  the  fine. 

210.    Whoever  fraudulently  obtains  a  decree  or 

Fraudnientiy  obtaining  a    Order  agaiust  any  persou  for  a 

decree  for  a  Bum  not  due.  g^^^^  j^Qt  duO  Or  f Or  a  larger  SUm 

than  is  due,  or  for  any  property  or  interest  in  property 
to  which  he  is  not  entitled,  or  fraudulently  causes  a 
decree  or  order  to  be  executed  against  any  person 
after  it  has  been  satisfied,  or  for  any  thing  in  respect 
of  which  it  has  been  satisfied,  or  fraudulently  suffers 
or  permits  any  such  act  to  be  done  in  his  name,  shall 
be  punished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  two  years,  or  with 
fine,  or  with  both. 

In  this  and  the  corresponding  Section  208,  the  intention  to 
defraud  is  essential. 

211.     Whoever,  with  intent  to  cause  injury  to  any 

Fal«ichargeofoffenoemade      perSOU,  institutes    Or  CaUSCS  tO 

witiiintent  to  injure.  ^^  instituted  any  criminal  pro- 

ceeding against  that  person,  or  falsely  charges  any 
person  with  having  committed  an  offence,  knowing 
that  there  is  no  just  or  lawful  groimd  for  such  pro- 
ceeding or  charge  against  that  person,  shall  be  punish- 
ed with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  two  years,  or  with  fine,  or  with 
both ;  and  if  such  criminal  proceeding  be  instituted 


174  CHAPTER   XI. 

on  a  false  charge  of  an  offence  punishable  with  death, 
transportation  for  life,  or  imprisonment  for  seven 
years  or  upwards,  shall  be  punished  with  imprison- 
ment of  either  description,  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to  fine. 

The  intention  to  cause  injury ^  that  is,  to  cause  harm  ille- 
gally to  some  person  in  body,  mind,  reputation  or  property 
(Section  44),  is  part  of  this  offence. 

Where  no  proceedings  are  actually  instituted,  and  no  false 
charge  is  made,  a  person  is  punishable  under  Section  182,  who 
injures  or  annoys  another  by  giving  false  information  to  a  public 
servant,  with  the  intention  of  causing  him  to  use  his  lawful 
powers  to  cause  injury  or  annoyance. 

This  Code  contains  no  provisions  for  the  punishment  (under 
these  names)  of  the  offence  of  "  subsequent  abetment"  or  of 
"  accessaries  after  the  fact."  The  offences  of  persons  falling 
within  such  descriptions  at  present  are  included  among  offences 
against  Public  Justice  and  are  punishable  under  the  next 
following  and  subsequent  Sections  of  this  Chapter. 

212.     Whenever  an  offence  has  been  committed, 
whoever  harbours  or  conceals 

Haxbouring  an  offender.  i  i        i 

a  person  whom  he  knows  or 
has  reason  to  believe  to  be  the  oflFender,  with  the  in- 
tention  of  screening  him  from  legal  punishment,  shall, 

if  the  oflFenceis  punishable  with 
ifacapitaioifence.  ^^^^^^  ^^  punishcd  With  im- 

prisonment of  either  description,  for  a  term  which  may 
extend  to  five  years,  and  shall  also  be  liable  to  fine ; 

and  if  the  offence  is  punishable 

If  punishable  with   trans-  »j.\    j.  a.    !•         /»       i»i? 

portation  for  life,  or  with  im-     With  transportation  lor  ilie,  or 

prisonment.  'ai     •  •  x       i.  •   i 

With  imprisonment  which  may 
extend  to  ten  years,  shall  be  punished  with  imprison- 
ment of  either  description,  for  a  term  which  may 
extend  to  three  years,  and  shall  also  be  liable  to  fine  ; 
and  if  the  offence  is  punishable  with  imprisonment 
which  may  extend  to  one  year  and  not  to  ten  years, 
shall  be  punished  with  imprisonment  of  the  descrip- 
tion provided  for  the  offence,  for  a  term  which  may 


OFFENCES   AGAINST   PUBLIC   JUSTICE.  175 

extend  to  one-fourth  part  of  the  longest  term  of  im- 
prisonment provided  for  the  offence,  or  with  fine,  or 
with  both. 

Exception.  This  provision  shall  not  extend  to  any 
case  in  which  the  harbour  or  concealment  is  by  the 
husband  or  wife  of  the  offender. 

Illustration. 

A,  knowing  that  B  has  committed  dacoitj,  knowingly  conceals 
B  in  order  to  screen  him  from  legal  punishment.  Here  as  B  is 
liahle  to  transportation  for  life,  A  is  liable  to  imprisonment  of  either 
description,  for  a  term  not  exceeding  three  years,  and  is  also  liable  to 
fine. 

The  Section  does  not  apply  to  the  harbouring  of  persons, 
not  being  criminals^  who  merely  abscond  to  avoid  or  delay  a 
judicial  investigation ;  nor,  necessarily,  to  acts  of  assistance 
given  to  known  criminals,  in  the  shape  of  money,  food,  or  means 
of  escape,  &c.  It  supposes  that  some  offence  has  actually  been 
committed,  and  that  the  harbourer  gives  refuge — with  the  inten- 
tion of  screening  him  from  legal  punishment — ^in  his  house, 
or  in  some  hiding  place,  to  one  whom  he  knows  op  has  reason 
to  believe  to  be  the  offender.  The  precise  ofifence  may  be  un- 
known to  him.  Thus  he  may  not  know  whether  the  person 
harboured  has  committed  theft,  or  extortion,  or  robbery ;  but 
if  he  has  reason  to  know  that  an  offence  against  property  has 
been  committed  by  such  person,  this  Section  will  apply. 

To  support  the  charge  the  following  proof  is  required. 

1.  That  an  offence  has  been  committed.  The  trial  will  not 
usually  take  place  until  after  the  guilt  of  the  principal  offender 
has  been  ascertained  by  his  conviction ;  if  it  takes  plsice  before, 
there  must  be  sufficient  proof  of  some  offence  committed. 

2.  The  harbouring  or  concealment  of  the  person  of  the  offen- 
der must  be  proved.  A  mere  receipt  of  the  property  plundered, 
or  of  the  proceeds  of  it,  will  not  constitute  this  offence. 

3.  Knowledge  or  cause  for  believing  that  the  person  har- 
boured is  the  offender  must  also  be  proved. 

The  intention  to  screen  from  justice  would  be  reasonably 
inferred  from  proof  of  the  above  circumstances.     But  of  course 


176  CHAPTER  XI. 

if  the  accused  can  show  satisfactorily  that  he  had  no  intention 
of  screening  the  oflFender  this  will  be  a  good  defence. 

The  Section  extends  to  all  cases,  save  the  two  excepted  ones. 
Thus  a  master  receiving  his  servant,  or  a  servant  his  master, — 
a  brother  his  brother, — a  father  his  son, — will  all  be  subject  to 
punishment.  In  some  of  these  instances,  however,  the  offence 
may  be  deemed  deserving  of  a  very  light  punishment. 

The  several  offences  coming  within  the  four  classes  which 
are  here  mentioned  will  be  found  at  pp.  33 — 38.  If  the  offence 
committed  is  incomplete  at  the  time  of  the  harbouring,  as  if  a 
blow  has  been  given  previously,  but  death  does  not  ensue  until 
afterwards,  it  seems  that  the  harbourer  is  punishable  only  for 
the  lesser  offence. 

213.     Whoever  accepts  or  attempts  to  obtain,  or 

Taking  gift.  Ac.  to  screen     agrccs  to  acccpt,  any  gratifi- 

•noffenSer  from  punishment,     cation  for  Mmself  OF  any  Other 

person,  or  any  restitution  of  property  to  himself,  or 
any  other  person,  in  consideration  of  his  concealing 
an  oflPence  or  of  his  screening  any  person  from  legal 
punishment  for  any  offence,  or  of  his  not  proceeding 
against  any  person  for  the  purpose  of  bringing  him 
to  legal  punishment,  shall,  if  the  offence  is  punishable 
., ,  ^  with  death,  be  punished  with 

Ifa capital  offence.  .  ,  i       ^a       .ii  -• 

imprisonment    of   either    de- 
scription, for  a  term  which  may  extend  to  seven  years, 
and  shall  also  be  liable  to  fine ;  and  if  the  offence 
.VI.,      .*!,  4.  ^  punishable  with  transpor- 

If  punishable  with   trans*       .    ,F       n       t/.  -ai      •     ^    . 

portation  for  life  or  with  im-      tatlOU  lOr  lite,  Or    With   impri- 
prisonment.  i        i  •    i  i       ^  . 

sonment  which  may  extend  to 
ten  years,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  fine ;  and  if  the 
offence  is  punishable  with  imprisonment  not  extend- 
ing to  ten  years,  shall  be  punished  with  imprisonment 
of  the  description  provided  for  the  offence  for  a  term 
which  may  extend  to  one-fourth  part  of  the  longest 
term  of  imprisonment  provided  for  the  offence,  or 
with  fine,  or  with  both. 


OFFENCES  AGAINST  PUBLIC  JUSTICE.     177 

The  compounding  of  a  crime  by  some  agreement  not  to  bring 
the  criminal  to  justice  if  the  property  is  restored  or  a  pecuniary 
or  other  gratification  (see  Section  161)  is  given^  is  the  offence 
punished  by  this  and  the  following  Section.  Those  offences  which 
approach  in  their  nature  to  civil  wrongs  admitting  of  compen- 
sation are  excepted  from  these  provisions. 
214.  Whoever  gives  or  causes,  or  offers  or  agrees 
r.^  ^    '^^         .    ^       t^  gi^®  ^^  cause  any  gratifica- 

Offaring gift  or  restoration      x*         i.  x 

of  property  in  oonsideration      tlOD.  tO    any    pcrSOU    Or    tO    re- 

ofsoreeninffoifender.  ^^^^^  ^^  cause  the  rcstoratlon 

of  any  property  to  any  person,  in  consideration  of 
that  person's  concealing  an  offence  or  of  his  screen- 
ing any  person  from  legal  punishment  for  any  offence, 
or  of  his  not  proceeding  against  any  person  for  the 
purpose  of  bringing  Mm  to  legal  punishment,  shall, 

if  the  offence  is  punishable 

If  •  capital  offence.  ^^^  ^^^y^  ^^  punishcd   with 

imprisonment  of  either  description,  for  a  term  which 
may  extend  to  seven  years,  and  shall  also  be  liable 

to  fine ;  and  if  the  offence  is 

If  pnniahable  witlitranspor-  **-iii  •it       t  t 

tationfor  life  or  withimpri-      puniShable     With     traUSporta- 

•onment.  ^^^^  ^^^  ^^^  ^^  yntYi  imprison- 

ment which  may  extend  to  ten  years,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  three  years,  and  shall  also  be 
liable  to  fine ;  and  if  the  offence  is  punishable  with 
imprisonment  not  extending  to  ten  years,  shall  be 
punished  with  imprisonment  of  the  description  pro- 
vided for  the  offence  for  a  term  which  may  extend  to 
one-fourth  part  of  the  longest  term  of  imprisonment, 
provided  for  the  offence,  or  with  fine,  or  with  both. 

Exception.  The  provisions  of  Sections  213  and  214 
do  not  extend  to  any  case  in  which  the  offence  con- 
sists only  of  an  act  irrespective  of  the  intention  of 
the  offender,  and  for  which  act  the  person  injured 
may  bring  a  civil  action. 

Illustrations, 
(a)  A  assaults  6  with  intent  to  commit  murder.    Here,  as  the 
offeuce  does  not  consist  of  the  assault  only,  irrespective  of  the  inten* 

2  A 


178  CHAPTER   XI. 

tion  to  commit  murder,  it  does  not  fall  within  the  exception,  and 
cannot  therefore  be  compounded. 

(h)  A  assaults  B.  Here,  as  the  offence  consists  simply  of  the  a(5t, 
irrespective  of  the  intention  of  the  offender  and  as  B  may  have  a 
civil  action  for  the  assault,  it  is  within  the  exception  and  nmy  be 
compoimded. 

{c)  A  commits  the  offence  of  bigamy.  Here  as  the  offence  is  not 
the  subject  of  a  civil  action,  it  cannot  be  compounded. 

(d)  B  commits  the  offence  of  adultery  with  a  married  wonian.  The 
offence  may  be  compounded. 

215.  Whoever  takes  or  agrees  or  consents  to  take 
Taking  gift  to  help  to  re-     any   gratification  under  pre- 

oover  stolen  property.  Ao.         ^cncc  or  on  accoimt  of  helping 

any  person  to  recover  any  moveable  property  of  which 
he  shall  have  been  deprived  by  any  oflfence  pun- 
ishable under  this  Code,  shall,  unless  he  uses  all  means 
in  his  power  to  cause  the  oflfender  to  be  apprehended 
and  convicted  of  the  offence,  be  pimished  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  two  years,  or  with  fine,  or  with  both. 

This  Section  is  intended  for  the  punishment  of  persons  who, 
being  usually  in  league  with  thieves,  or  well  aware  of  their 
proceedings,  obtain  money  &c.,  for  the  recovery  of  stolen  proper- 
ty, without  making  any  effort  to  bring  the  oflFenders  to  justice. 
In  many  places,  cattle  &c.,  are  stolen  by  persons  whose  object  it 
is  to  restore  the  stolen  property  to  the  owner  on  payment  of  a 
reward.  The  '^  go  between,'^  who  is  usually  in  case  of  cattle 
stealing  a  professional  tracker,  is  the  person  contemplated  by 
this  Section:  If  he  aids  or  instigates  the  thieves,  he  is  an 
abettor  of  theft.  But  in  default  of  evidence  of  abetment,  if  he 
receives  a  reward  for  procuring  the  restoration  of  stolen  pro- 
perty, without  using  '^  all  means  in  his  power''  to  procure  the 
apprehension  and  conviction  of  the  offender,  he  is  punishable 
under  this  Section. 

216.  Whenever  any  person  convicted  of  or  charged 

with  an  offence,  being  in  law- 
who^'SStledfrom^^uwS!    M  custody  tbr  that   offence, 

g^ibSen^rde^re^f  ^'^''"^'^''      CSCapCS  from  SUCh    CUStody,    Ot 

whenever  a  public  servant,  in 
the  exercise  of  the  lawful  poM  ers  of  such  public 


OFFENCES  AGAINST  PUBLIC  JUSTICE.  179 

servant,  orders  a  certain  person  to  be  apprehended 
for  an  offence,  whoever,  knowing  of  such  escape  or 
order  for  apprehension,  harbours  or  conceals  that 
person  with  the  intention  of  preventing  him  from 
being  apprehended,  shall  be  punished  in  the  manner 
following,  that  is  to  say :  if  the  offence  for  which  the 
,  ,  _  person  was  in  custody  or  is 

If  a  capital  offence.  -"^j        jj.t_  i_jj- 

ordered  to  be  apprehended  is 
punishable  Mrith  death,  he  shall  be  punished  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  seven  years,  and  shall  also  be  liable 
to  fine ;  if  the  offence  is  punishable  with  transport 

tationfor  life,  or  imprisonment 

If  punishable  with  transpor-       />  i  i.viii 

tation  for  life  or  with  impri.    for    ten    vcars,    he   shall  be 

Bonment.  •  i_    j         •j.i.    •  •  i. 

punished  with  imprisonment 
of  either  description,  for  a  term  which  may  extend 
to  three  years  with  or  without  fine;  and  if  the 
offence  is  punishable  with  imprisonment  which  may 
extend  to  one  year  and  not  to  ten  years,  he  shall  be 
punished  with  imprisonment  of  the  description  pro- 
vided for  the  offence  for  a  term  which  may  extend 
to  one-fourth  part  of  the  longest  term  of  the  impri* 
sonment  provided  for  such  offence,  or  with  fine,  or 
with  both. 

JException.  This  provision  does  not  extend  to  the 
case  in  which  the  harbour  or  concealment  is  by  the 
husband  or  wife  of  the  person  to  be  apprehended. 

See  the  note  to  Section  212.  The  ofience  in  the  present 
Section  is  aggravated,becaase  the  person  harboured  has  escaped 
after  being  actually  convicted  or  charged  with  the  oflFence,  or 
because  a  warrant  or  order  for  his  apprehension  has  issued. 

217.    Whoever,  being  a  public  servant,  knowingly 

disobeys  any  direction  of  the 

Public  servant  disobeying  a      i ^Jl;    a^    li^    ,^^„    z^  ,„U,*..U 

direction  of  uw  with  bitent    law  as  to  the  Way  m  whicn 

mentor  prope^yfi^m^forf^^^      he    is    to    COnduct    himSClf  aS 

^'^^^  such  public    servant,  intend- 

ing thereby  to  save,  or  knowing  it  to  be  likely  that  he 
wUl  thereby  save,  any  person  from  legal  punishment^ 

2  A  2 


180  CHAPTEK  XI. 

or  subject  him  to  a  less  punishment  than  that  to 
which  he  is  liable,  or  with  mtent  to  save,  or  knowing 
that  he  is  likely  thereby  to  save  any  property  from 
forfeiture  or  any  charge  to  which  it  is  liable  by  law, 
shall  be  punished  with  imprisonment  of  either  de- 
scription, for  a  term  which  may  extend  to  two  years, 
or  with  fine,  or  with  both. 

218.  Whoever,  being  a  public  servant  and  being, 
_   ,  as  such  public  servant,  charg- 

Fublio  servant  framing  an  in-  j  -x-l  ii.  x*  ^i» -.-M- 
oorreot  record  or  writing  with  Cd  With  the  preparation  01  aUV 
intent  to  save  person    from  j  xi:  'i.* c JL 

©unishment  op  property  from    rccord  or  othcr  writmff,  iramcs 

forfeiture.  xi     x  j  -x*  '-^    ^ 

that  record  or  writing  in  a 
manner  which  he  knows  to  be  incorrect,  with  intent 
to  cause  or  knowing  it  to  be  likely  that  he  will  there- 
by cause  loss  or  injury  to  the  public  or  to  any  person, 
or  with  intent  thereby  to  save,  or  knowing  it  to  be  like- 
ly that  he  will  thereby  save,  any  person  from  legal 
E unishment,  or  with  intent  to  save,  or  knowing  that 
e  is  likely  thereby  to  save,  any  property  from  forfei- 
ture or  other  charge  to  which  it  is  liable  by  law,  shall 
be  punished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  three  years,  or  with 
fine,  or  with  both. 

219.  Whoever,  being  a  public  servant,  corruptly  or 

maliciously  makes  or  pronoun- 
p^SSS^iirSSSigilSSa^  ces  in  any  stage  of  a  judicial 
^S^tih^^^i^tw^    proceeding,  any  report,  order, 

verdict,  or  decision  which  he 
knows  to  be  contrary  to  law,  shall  be  punished  with 
imprisonment  of  either  description,  for  a  term  which 
may  extend  to  seven  years,  or  with  fine,  or  with 
both. 

220.  Whoever,  being  in  any  office  which  gives  him 

lega)  authority  to  commit  per- 
t^^^^i%^^Z^i  sons  for  trialor  to  confinement, 
iViSa2foJSfJ?t?ia^*^  or  to  keep  persons  in  confine- 
ment, corruptly  or  maliciously 
commits  any  person  for  trial  or  to  confinement,  or 
keeps  any  person  in  confinement  in  the  exercise  of 
that  authority,  knowing  that  in  so  doing  he  is  acting 


OrPENCES  AGAINST  PUBLIC  JUSTICE.  181 

contrary  to  law,  shall  be  pimished'Mrith  imprisonment 
of  either  description,  for  a  term  which  may  extend  to 
seven  years,  or  with  fine,  or  with  both. 

221.  Whoever,    being  a  public  servant,   legally 

bound  as  such  public  servant, 
p^*?ndSS«i2?JS*S?aSS8:  to  apprehend  or  to  keep  in 
SppSSSSd.  ^^^^  ^^  ^^  ^  confinement  any  person  charg- 
ed with  or  liable  to  be  appre- 
hended for  an  offence,  intentionally  omits  to  apprehend 
such  person,  or  intentionally  suffers  such  person  to 
escape,  or  intentionally  aids  such  person  in  escaping 
or  attempting  to  escape  from  such  confinement, 
shall  be  punished  as  follows,  that  is  to  say  : 
With  imprisonment  of  either  description,  for  a  term 

which  may  extend  to  seven 
years,  with  or  without  fine, 
if  the  person  in  confinement,  or  who  ought  to 
have  been  apprehended,  was  charged  with  or  liable 
to  be  apprehended  for  an  offence  punishable  with 
death;  or 

With  imprisonment  of  either  description,  for  a  term 
which  may  extend  to.  three  years,  with  or  without 
fine,  if  the  person  in  confinement,  or  who  ought  to 
have  been  apprehended,  was  charged  with  or  liable 
to  be  apprehended  for  an  offence  punishable  with 
transportation  for  life,  or  imprisonment  for  a  term 
which  may  extend  to  ten  years ;  or 

With  imprisonment  of  either  description  for  a  term 
which  may  extend  to  two  years,  with  or  without  fine,  if 
the  person  in  confinement,  or  who  ought  to  have  been 
apprehended,  was  charged  with,  or  liable  to  be  appre- 
hended for  an  offence  punishable  with  imprisonment 
for  a  term  less  than  ten  years. 

222.  Whoever,   being  a  public   servant,  legally 

,  .     ^  bound  as  such  public  servant, 

Intentional  omission  to  ap«       .  i  -i  j.       i 

twehendon  thepartofapub-    to   apprehend  or  to  kccp  in 

fio  servant  bound  by  law  to  rt  .  ^  j 

m;>prebend  a  person^  under  COIlIinement  aUV  per  SOU  Under 
•entenoe  of aCouTtof  Justioe.  .  /»       ^^   -V.       /•  x      x* 

sentence  of  a  Court  of  Justice 
for  any  offence,   intentionally   omits  to   apprehend 


182  CHAPTER  XI. 

such  person,  or  intentionally  suffers  such  person  to 

escape,  or  intentionally  aids  such  person  in  escaping  or 

attempting  to  escape  from  such   confinement,   shall 

^  .  ^      ,  be  punished  as  follows,  that  is 

Punishment.  ,      ^ 

to  say; 

With  transportation  for  lite,  or  with  imprisonment 
of  either  description,  for  a  term  which  may  extend  to 
fourteen  years,  with  or  without  fine,  if  the  person  in 
confinement,  or  who  ought  to  have  been  apprehended, 
is  under  sentence  of  death :  or 

With  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  seven  years,  with  or  without  fine, 
if  the  person  in  confinement,  or  who  ought  to  have  been 
apprehended,  is  subject  by  a  sentence  of  a  Court  of 
Justice,  or  by  virtue  of  a  commutation  of  such  sentence, 
to  transportation  for  life  or  penal  servitude  for  life, 
or  to  transportation,  or  penal  servitude,  or  imprison- 
ment for  a  term  of  ten  years  or  upwards ;  or 

With  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  three  years,  or  with  fine,  or  with 
both,  if  the  person  in  confinement,  or  who  ought  to 
have  been  apprehended,  is  subject  by  a  sentence  of  a 
Court  of  Justice  to  imprisonment  for  a  term  not  ex- 
ceeding ten  years. 

223.  Whoever,  being  apublic  servant,  legally  bound 
_         .  ^         ^    as  such  public  servant  to  keep 

Escape    from   confinement      .  A  .  ^ 

negligently  snflferedby  a  pub-    m    Confinement    any    pcrsou 

charged  with  or  convicted  of 
any  offence,  negligently  suffers  such  person  to  escape 
from  confinement,  shall  be  punished  with  simple  im- 
prisonment for  a  term  which  may  extend  to  two  years, 
or  with  fine,  or  with  both. 

The  two  following  Sections  relate  to  resistance  or  illegal 
obstruction  offered  to  the  lawful  apprehension  of  any  person. 
The  provisions  of  the  4th  Chapter  concerning  the  right  of  pri- 
vate defence,  especially  such  of  them  as  relate  to  the  limitation  of 
this  right  when  an  act  is  done  by  or  by  the  direction  of  a  public  ^ 
servant  (Section  99),  should  be  consulted. 


OFFENCES  AGAINST  PUBLIC   JUSTICE.  183 

224.  Whoever  intentionally  offers  any  resistance  or 

illegal  obstruction  to  the  law- 
by  a  person  to  bis  lawful  ap-  lul  apprchension  01  nimseii  lor 
^*'^^"°'^  any  offence  with  which  he  is 

charged,  or  of  which  he  has  been  convicted,  or  escapes 
or  attempts  to  escape  from  any  custody  in  which  he 
is  lawfully  detained  for  any  such  offence,  shall  be  pu- 
nished with  imprisonment  of  either  description,  for  a 
term  which  may  extend  to  two  years,  or  with  fine,  or 
with  both. 

^Explanation,  The  punishment  in  this  Section  is  in 
addition  to  the  punishment  for  which  the  person  to  be 
apprehended  or  detained  in  custody,  was  liable  for  the 
offence  with  which  he  was  charged,  or  of  which  he 
was  convicted. 

225.  Whoever  intentionally  offers  any  resistance  or 

illegal  obstruction  to  the  law- 

Besiatance  or  obstruction  to       *»   -i  v  •  j*  xu 

tbe  lawAii  apprehension  of    lul  apprehcnsion  ot  any  otucr 

another  person.  *■  *■  j%  /m 

person  for  an  offence,  orrescues 
or  attempts  to  rescue  any  other  person  from  any 
custody  in  which  that  person  is  lawfully  detained  for 
an  offence,  shall  be  punished  with  imprisonment  of 

either  description,  for  a  term 
Punishment.  whichmay  extend  to  two  years, 

or  with  fine,  or  with  both ; 

Or,  if  the  person  to  be  apprehended,  or  the  person 
rescued  or  attempted  to  be  rescued,  is  charged  with, 
or  liable  to  be  apprehended  for  an  offence  punishable 
with  transportation  for  life,  or  imprisonment  for  a 
term  which  may  extend  to  ten  years,  shall  be 
punished  with  imprisonment  of  either  description,for  a 
term  which  may  extend  to  three  years,  and  shall  also 
be  liable  to  fine  ; 

Or,  if  the  person  to  be  apprehended,  or  rescued 
or  attempted  to  be  rescued,  is  charged  with,  or  liable 
to  be  apprehended  for  an  offence  punishable  with  death, 
shall  be  punished  with  imprisonment  of  either  descrip- 
tion,  for  a  term  which  may  extend  to  seven  years,  and 
shall  also  be  liable  to  fine ; 


184  CHAPTER   XI. 

Or,  if  the  person  to  be  apprehended,  or  rescued  or 
attempted  to  be  rescued,  is  liable,  under  the  sentence 
of  a  Court  of  Justice,  or  by  virtue  of  a  commutation 
of  such  a  sentence,  to  transportation  for  life,  or  to 
transportation,  penal  servitude,  or  imprisonment,  for 
a  term  of  ten  years  or  upwards,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  seven  years,  and  shall  also  be 
liable  to  fine ; 

Or,  if  the  person  to  be  apprehended,  or  rescued 
or  attempted  to  be  rescued,  is  under  sentence  of  death » 
shall  be  punished  with  transportation  for  life,  or 
imprisonment  of  either  description,  for  a  term  not 
exceeding  ten  years,  and  shall  also  be  liable  to  fine. 

226.  Whoever,  having  been  lawfully  transported, 
uniawftdretumfrom trans,    rotums  from  such  trausporta^ 

portation.  tiou,  the  term  of  such  trans- 

portation not  having  expired,  and  his  punishment  not 
having  been  remitted,  shall  be  punished  with  trans- 
portation for  life,  and  shall  also  be  liable  to  fine,  and 
to  be  imprisoned  with  rigorous  imprisonment  for  a 
term  not  exceeding  three  years  before  he  is  so  trans- 
ported. 

227.  Whoever,  having  accepted  any  conditional  re- 
vioiation  of  condition  of  re-    missiou  of  puuishmeut,  know- 

mission  of  puniahment.  iugly  violatos  any  couditiou  On 

which  such  remission  was  granted,  shall  be  punished 
with  the  punishment  to  which  he  was  originally  sen- 
tenced, if  he  has  already  suffered  no  part  of  that 
punishment,  and  if  he  has  suffered  any  part  of  that 
punishment  then  with  so  much  of  that  punishment  as 
he  has  not  already  suffered. 

228.  Whoever  intentionally  offers  any  insult  or 

causes  any  interruption  to  any 
ru^t^on**t?^aWo''Se^^t"  P^bHc  scrvant,  while  such 
SiW^eSdLg^''  ""^  *  ^""^^    public  servant  is  sitting  in  any 

stage  of  a  judicial  proceeding, 
shall  be  punished  with  simple  imprisonment  for  a 
term  which  may  extend  to  six  months,  or  with  fine, 


OFFENCES  RELATING  TO  COIN.  185 

which  may  extend  to  one  thousand  Rupees,  or 
with  both. 

229.     Whoever,  by  personation  or  otherwise,  shall 

Personation  of  a  juror  or  aa-      intentionally    cause   01"    kuOW- 

••••^-  ingly  suflfer  liimself  to  be  re- 

turned, empanelled,  or  sworn  as  a  juryman  or  assessor 
in  any  case  in  which  he  knows  that  he  is  not  entitled 
by  law  to  be  so  returned,  empanelled,  or  sworn ;  or, 
knowing  himself  to  have  been  so  empanelled,  return- 
ed, or  sworn  contrary  to  law,  shall  voluntarily  serve 
on  such  jury  or  as  such  assessor,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  two  years,  or  with  fine,  or  with 
both. 


Chaptee  XII. 

OF  OFFENCES  RELATING  TO  COIN  AND 
GOVERNMENT  STAMPS. 


230.     Coin  is  metal  used  as  money  stamped  and 

issued   by    the    authority    of 
<5oin.  some  Government  in  order  to 

be  so  used. 

Coin  stamped  and  issued  by  the  authority  of  the 
Queen^  or  by  the  authority  of  the  Government  of 

India,  or  of  the  Government 
^"•«a'«  <»*»•  of  any  Presidency,  or  of  any 

Govemm^it  in  the  Queen's  dominions  is  designated 
as  the  Queen's  coin* 

(a)  Cowries  are  not  coin. 

(rf)  Lumps  of  unstamped  copper,  though  used  as  money,  are  not 
coin. 

(e)  Medals  are  not  coin,  inasmuch  as  they  are  not  intended  to 
be  used  as  money. 

(b)  The  coin  denominated  as  the  Company's  Rupee  is  the  (Queen's 
coin. 

2  B 


186  CHAPTER  XII. 

231.  Whoever  counterfeits,  or  knowingly  performs 
Counterfeiting  coin.  ^ny  part   of   the    process    of 

counterfeiting  coin,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  seven  years,  and  shall 
also  be  liable  to  fine. 

^Explanation.  A  person  commits  this  ofltence,  who, 
intending  to  practise  deception,  or  knowing  it  to  be 
likely  that  deception  will  thereby  be  practised,  causes 
a  genuine  coin  to  appear  like  a  different  coin. 

The  meaning  of  the  word  "  counterfeit^'  has  been  explained  : 
see  Section  28.  This  offence  consists  in  causing  any  thing  to 
resemble  coined  money  for  the  purpose  of  deception.  There  are 
or  may  be  many  steps  in  the  process  of  counterfeiting,  during 
some  of  which  the  false  money  is  not  in  a  fit  state  to  be  issued 
as  coin,  or  does  not  even  bear  any  resemblance  to  coin.  But  the 
punishment  provided  by  this  Section  applies  equally  whether 
the  act  of  counterfeiting  is  complete  or  unfinished. 

To  prove  the  offence  of  counterfeiting,  it  is  not  necessary  to 
shew  that  the  accused  person  was  detected  in  the  act.  But 
presumptive  evidence,  as  in  other  cases,  will  be  sufficient  as, 
that  false  coin  was  found  in  his  possession,  and  that  there  were 
coining  tools  discovered  in  his  house,  &c. 

In  support  of  a  charge  of  performing  any  part  of  the  process 
of  counterfeiting,  it  will  not  be  sufficient  merely  to  shew  that 
steps  have  been  taken  towards  a  counterfeiting  as  by  providing 
materials,  tools,  &c.,  but  some  stage  of  the  process  itself  must 
be  proved  to  have  been  commenced.  The  knowledge  that  the 
process  is  for  the  purpose  of  counterfeiting  coin,  and  not  for  an 
innocent  purpose,  may  be  shewn  by  such  presumptive  evidence 
as  is  referred  to  above. 

232.  Whoever  counterfeits,  or  knowingly  performs 
oountorfeitiiig  the  Queen's    any  part   of  the    process    of 

^^^  counterfeiting,     the     Queen*s 

coin,    shall    be    punished    with    transportation   for 
life  or  with  imprisonment  of  either  description,  for  a 


OFFENCES  BELATING  TO  COIN.        187 

term  which  may  extend  to  ten  years,  and  shall  also 
be  liable  to  fine. 

See  the  note  to  the  preceding  Section.  When  the  coin  counter- 
feited is  the  Queen^s  coin^  that  is  coin  issued  by  the  Indian 
Government,  English  coin,  or  the  coin  of  a  British  Colony,  or  of 
any  other  part  of  the  British  Dominions  (Section  230),  the  pun- 
ishment of  the  offence  is  made  heavier  than  when  the  coin  is  of 
any  other  description. 

233.  Whoever  makes,  or  mends,  or  performs  any 
Making  or  seUiiiK  instru-    P^rt  of  the  process  of  making 

mentfop  oountepfeiang  coin.    ^^j.  mending,  or  buys,  sells,  or 

disposes  of,  any  die  or  instrument,  for  the  purpose  of 
being  used,  or  knowing  or  having  reason  to  believe 
that  it  is  intended  to  be  used,  for  the  purpose  of  coun- 
terfeiting coin,  shall  be  punished  with  imprisonment 
of  either  description,  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  fine. 

When  the  instrument  is  a  die, — by  which  the  metal  is  marked 
so  as  to  resemble  a  coin  and  the  act  of  counterfeiting  is  com- 
pleted,—or  any  other  instrument  appearing  by  a  mark  on  the 
face  of  it  to  be  fit  for  coining,  there  can  be  little  doubt  of  the 
knowledge  of  the  guilty  purpose  for  which  it  is  intended.  But 
supposing  the  instrument  to  be  one  which  is  used  in  other 
trades, — as  the  essence  of  the  offence  is  the  guilty  knowledge  of 
the  purpose  for  which  it  is  intended,  the  prosecutor  should 
prove  that  the  act  of  making  or  mending,  &c.,  was  done  with 
such  knowledge. 

234.  Whoever  makes,  or  mends,  or  performs  any 

part  of  the  process  of  making 

Making  or  saUing  instru-      ^  j.       '^  -•  ,,         ^ 

ment  ^  for       counterfeiting      Or    mcnomg,   Or  DUyS,  Sells,  Or 

Queen's  coin.  disposcs  of  any  die  or  instru- 

ment, for  the  purpose  of  being  used,  or  knowing  or 
having  reason  to  believe  that  it  is  intended  to  be 
used,  for  the  purpose  of  counterfeiting  the  Queen's 
coin,  shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  seven 
years,  and  shall  also  be  liable  to  fine, 

2  B  2 


188  CHAPTER   XII. 

See  the  last  note.  The  offence  relates  to  the  Queen's  coin 
(Section  230),  and  is  therefore  more  severely  punished. 

236.  Whoever  is  in  possession  of  any  instrument  or 
material,  for  the  purpose  of 
n5fe^!SrVo?  ^5i?':SS?SS*?f  using  the  same  for  counterfeit- 
fyiSig^im^  i6r oountef.  {j^^  ^^jj^^  ^^  kuowiug  or  hav- 
ing reason  to  believe  that  the 
same  is  intended  to  be  used  for  that  purpose, 
shall  be  punished  with  imprisonment  of  either  de- 
scription, for  a  term  which  may  extend  to  three  years, 
and  shall  also  be  liable  to  fine ;  and  if  the  coin  to  be 
counterfeited  is  the  Queen's  coin,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  ten  years,  and  shall  also  be  liable 
to  fine. 

The  possession  of  the  iustrument  or  material  is  made  an 
offence  only  when  it  is  coupled  with  the  guilty  purpose  or 
knowledge  here  specified,  which  must  therefore  be  established 
by  evidence  presumptive  or  otherwise. 

236.   Whoever,  being  within  British  India,  abets  the 

counterfeiting  of  coin  out  of 

isiu!^l^lf^itfSSi^:    British  India,  shaU  be  punish- 

ed  in  the  same    manner    as 

if  he  abetted  the  counterfeiting  of  such  cpin  within 

British  India. 

Of  the  several  modes  of  abetment  (see  Section  107),  abet- 
ment by  aid  seema  the  most  likely  to  occur  in  this  casa.  Any 
person  in  India,  whether  a  subject  or  a  foreigner,  supplying 
instruments  or  materials  to  persons  elsewhere  for  the  purpose 
of  counterfeiting  any  coin,  is  punishable.  Whether  the  coin 
is  Queen^s  coin, — or  is  a  coin,  which  though  current  in  some 
parts  of  India  (as  the  Spanish  Dollar)  is  not  a  coin  coming 
under  the  description  of  Queen^s  coin, — or  is  a  foreign  coin 
not  currept  in  India,— the  abetment  of  the  counterfeiting  it 
is  punishable  under  this  Section. 


OFFENCES  RELATING  TO  COIN.        189 

237.  Whoever  imports  into  British  India,  or  exports 
imp<^  ot  export  of  ooun-    therefrom,     any     counterfeit 

torfeitooin,  ^q^^  knowing  or  having  rea* 

son  to  believe  that  the  same  is  counterfeit,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  three  years,  and  shall 
also  be  liable  to  fine. 

238.  Whoever  imports  into  British  Indiaj^or  ex- 

ports therefrom,  any  counter- 
fiS^tS^^S'^s'^o^f^'-    feit  coin  which  he  knows  or 

has  reason  to  believe  to  be  a 
counterfeit  of  the  Queen's  coin,  shall  be  punished 
with  transportation  for  life  or  with  imprisonment 
of  either  description,  for  a  term  which  may  extend 
to  ten  years,  and  shall  also  be  liable  to  fine. 

Hie  offence  in  this  and  the  preceding  Section  consists  in  an 
import  or  export^  whether  by  sea  or  by  land,  ofany  coin  known 
by  the  importer,  &c.,  or  which  he  has  reason  to  believe,  to  be 
counterfeit.  The  same  evidence  which  would  shew  that  an 
importer  had  reason  for  such  a  belief  would,  it  seems,  also  pi'ove 
a  gnilty  knowledge  on  his  part. 

239.  Whoever,  having  any  counterfeit  coin,  which 

at  the  time  when  he  became 

poasesseTwiththelmowlel^e      pOSSCSSCd  of  it  hc   kuCW  to    bc 

lhatiti.oounterf.it.  counterfeit,    fraudulently    or 

with  intent  that  fraud  may  be  committed,  delivers  the 
same  to  any  person,  or  attempts  to  induce  any  person 
to  receive  it,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to 
five  years,  and  shall  also  be  liable  to  fine. 

The  Code  distinguishes  between  two  different  classes  of  utter- 
ers.  An  utterer  by  profession,  who  is  the  agent  employed  by 
the  coiner  to  bring  counterfeit  coin  into  circulation,  is  guilty  of 
a  very  high  offence.  Such  an  utterer  stands  to  the  coiner  in  a 
relation  not  very  different  from  that  in  which  a  habitual  receiv- 
er of  stolen  goods  stands  to  a  thief.     He  makes  coining  a  far 


190  CHAPTER  XII. 

less  perilous  and  a  far  more  lucrative  pursuit  than  it  would 
otherwise  be.  He  passes  his  life  in  the  systematic  violation  of 
the  law,  and  in  the  systematic  practice  of  fraud  in  one  of  its 
most  pernicious  forms.  He  is  one  of  the  most  mischievous, 
and  is  likely  to  be  one  of  the  most  depraved  of  criminals.  But 
a  casual  utterer,  an  utterer  who  is  not  an  agent  for  bringing 
counterfeit  coin  into  circulation,  but  who  having  heedlessly 
received  a  bad  rupee  in  the  course  of  his  business,  takes  advan- 
tage of  the  heedlessness  of  the  next  person  with  whom  he  deals 
to  pay  that  bad  rupee  away,  is  an  oflTender  of  a  very  different 
class.  He  is  undoubtedly  guilty  of  a  dishonest  act,  but  of  one 
of  the  most  venial  of  dishonest  acts.  It  is  an  act  which  proceeds 
not  from  greediness  for  unlawful  gain  but  from  a  wish  to  avoid, 
by  unlawful  means  it  is  true,  what  to  a  poor  man  may  be  a 
severe  loss.  It  is  an  act  which  has  no  tendency  to  facilitate  or 
encourage  the  operations  of  the  coiner.  It  is  an  occasional  act : 
an  act  which  does  not  imply  that  the  person  who  commits  it  is  a 
person  of  lawless  habits. 

This  Section  is  directed  against  the  professional  dealers  in 
false  coin.  Their  receipt  of  the  false  coin  knowing  at  the  time 
they  received  it  that  it  was  counterfeit,  is  made  the  test  of  their 
being  such  dealers.  The  offence  contemplated  in  this  Section 
appears  to  be  a  delivery  or  attempt  to  deliver  by  such  a  dealer 
to  some  person  whether  an  accomplice  or  not, — the  intention 
being  that  that  person,  or  some  other,  should  be  defrauded. 

240.     Whoever,  having  any  counterfeit  coin  which 

is  a  counterfeit  of  the  Queen's 

Delivery   of   Queen's  coin  .  j         -u*   r.         j.  j.-l^     j.» 

posBessed  with  the  knowledRO  COIU,  and  WillCn,  at  tlie  time 
rhatitiscounterfeit.  ^^^^     ^^     ^^^^^      pOSSCSSCd 

of  it,  he  knew  to  be  a  counterfeit  of  the  Queen's 
coin,  fraudulently  or  with  intent  that  fraud  may  be 
committed,  delivers  the  same  to  any  person  or  at- 
tempts to  induce  any  person  to  receive  it,  shall  be 
pimished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  ten  years,  and  shall 
also  be  liable  to  fine. 


OFFENCES  RELATING  TO   COIN.  191 

See  the  note  to  the  preceding  Section.  A  heavier  punishment 
is  here  given  because  the  oflTence  relates  to  Queen's  coin. 

241.  Whoever   delivers  to  any  other  person  as 

genuine,  or  attempts  to  induce 
•.^|SS?e*?rS?wii2nf&S  any  other  person  to  receive  as 
SStiSSwti'b^cSSJtJrfeit^^    genuine,  any  counterfeit  coin, 

which  he  knows  to  be  counter- 
feit, but  which  he  did  not  know  to  be  counterfeit  at 
the  time  when  he  took  it  into  his  possession,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  two  years,  or  with  fine 
at  an  amount  which  may  extend  to  ten  times  the 
value  of  the  coin  counterfeited,  or  with  both. 

Illustrafion. 

A,  a  coiner,  delivers  counterfeit  Company's  Bapees  to  his  accom- 
plice B,  for  the  purpose  of  uttering  them.  B  sells  the  Rupees  to 
C,  another  utterer,  who  buys  them,  knowing  them  to  he  counter- 
feit. C  pays  away  the  Rupees  for  goods  to  D,  who  receives  them, 
not 'knowing  them  to  be  counterfeit.  D,  after  receiving  the  Rupees, 
discovers  that  they  are  counterfeit,  and  pays  them  away  as  if  they 
were  good.  Here  D  is  punishable  oply  under  this  Clause,  but  B 
and  C  are  punishable  under  Section  239  or  240  as  the  case  may  be. 

See  the  note  to  Section  239. 

242.  Whoever,  fraudulently  or  with  intent  that 

fraud  may  be  committed,  is  in 
co^???!^^rsonw^o^^1?  posscssiou  of  Counterfeit  coin, 
^e^^^tt^rSot'^'''^    having    known    at   the  time 

when  he  became  possessed 
thereof  that  such  coin  was  counterfeit,  shall  be  punish- 
ed with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  three  years,  and  shall  also  be 
liable  to  fine. 

243.  Whoever  fraudulently  or  with  intent  that 

fraud  may  be  committed  is  in 
b/2S5SSr^i«e^w  ??*&  possession  of  counterfeit  coin, 
S£n?SS»*SSSidt£r?ot^  ^"^    which  is  a  counterfeit  of  the 

Queen's  coin,  having  known 
at  the  time  when  he  became  possessed  of  it  that  it  was 
counterfeit,   shall  be  punished  with  imprisonment 


192  CHAMER  XII. 

of  either  description,  for  a  term  which  may  extend  to 
seven  years,  and  shall  also  be  liable  to  fine. 

See  the*note  to  Section  239.  The  offence  in  this  and  the 
preceding  Section,  is  the  possession  of  counterfeit  coin  (with 
intent  to  defraud)  by  a  person  who  from  his  knowledge  at  the 
time  when  he  became  possessed  of  it,  may  be  presumed  to  be  a 
professional  utterer.  These  Sections  are  not  intended  to  apply 
to  the  case  of  a  possession  by  another  person  who  can  shew  that, 
although  he  received  coin  knowing  it  to  be  counterfeit,  the 
receipt  was  for  no  guilty  purpose,— as  if  he  shews  that  it  was  for 
the  purpose  of  testing  the  coin,  or  of  destroying  it,  or  for  safe 
custody  until  required  to  be  produced  in  a  Court  of  Justice,  &c. 

244.     Whoever,  being  employed  in  any  mint  law- 
fully established    in    British 
oauSiSroSS'tWof^*^^^^     Iiidia,  does  any  act,  or  omits 
gJLThiftoe^cfbriS?.^''''*^"    what  he  is  legally  bound  to 

do,  with  the  intention  of  caus- 
ing any  coin  issued  from  that  mint  to  be  of  a 
different  weight  or  composition  from  the  weight  or 
composition  fixed  by  law,  shall  be  punished  with 
imprisonment  of  either  description,  for  a  term  which 
may  extend  to  seven  years,  and  shall  also  be  liable  to 
fine. 

The  law  has  fixed  the  weight  and  composition  of  various 
coins  and  has  declared  in  what  cases  they  shall  be  a  legal 
tender.  The  object  of  this  Section  is  to  secure  the  purity  of  the 
coinage  and  its  exact  conformity  to  the  legal  standard  against 
the  act  or  omission  of  persons  employed  in  mints. 

The  proof  must  be  that  the  person  is  employed  in  a  Govern- 
ment mint,  and  that  the  act  or  omission  which  is  the  subject  of 
the  charge  was  intended  to  cause  the  coin  there  made  or  issued 
to  vary  from  the  fixed  standard.  It  is  not  part  of  the  definition, 
and  therefore  it  will  be  no  necessary  part  of  the  proof,  that  any 
wrongful  gain  should  accrue  to  the  person  charged,  or  that  loss 
should-be  caused  to  the  Government  or  the  public. 


OFFENCES   RELATING  TO   COIN.  193 

245.  Whoever  without  lawful  authority,  takes  out 

ITiitowftiUy  taking  from  a      <>f    ^^7    iniut,    lawfully   estah- 
mint  any  ooinlnginrtpument.       UgJ^^   Jj^   British     India,     any 

coining  tool  or  instrument,  shall  he  punished  with  im- 
prisonment of  either  description  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to 
fine. 

See  the  note  to  Section  233.  Suppose  the  instrument  to  be 
one  used  in  an  ordinary  trade  :  the  taking  may  be  for  an  inno- 
cent use  in  such  trade.  The  substance  of  this  offence  consists 
in  taking  a  coining  tool  for  the  purpose  of  using  it  to  make 
counterfeit  coin.  If  the  instrument  appears  on  its  face  to  be 
intended  for  the  purpose  of  making  coin^  and  it  is  taken  with- 
out lawful  authority^  the  inference  is  strong  that  the  taker 
means  to  use  it  improperly. 

246.  Whoever  fraudulently   or  dishonestly  per- 
i-wmdnientiy  dhniniahin«    forms  ou  any  coiu  any  opera- 

lSmpSdSSi<Sr'a^*SSSf  ^""^    tion    which    diminishes    the 

weight  or  alters  thecomposition 
of  that  coin,  shall  be  punished  with  imprisonment  of 
eith^  description  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  fine. 

Explanation.  A  person  who  scoops  out  part  of  the 
coin,  and  puts  any  thing  else  into  the  cavity,  alters 
the  composition  of  that  coin. 

247.  Whoever  fraudulently  or  dishonestly  performs 

on  any  of  the  Queen's  coin,  any 
tiS^a^ro?  aSK^  operation  which  diminishesthe 
o^offtion  of  the  Queen's    weight  or  alters  the  composi. 

tion  of  that  coin,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  seven  years,  and  shall 
also  be  liable  to  fine. 

The  coin  is  made  lighter,  or  its  composition  altered,  "  fraada* 
lently''  or  ''  dishonestly.''     See  Sections  24,  25.    The  act  of 
debasing,  or  lightening  the  weight,  if  not  shewn  by  direct 
2  c 


194  CHAPTER   XII. 

evidence,  may  be  proved  by  circumstancea,  — as  by  shewing  that 
the  accused  person  had  in  his  possession  debased  coin  or 
filed  coin.  The  intention  to  use  it  for  a  fraudulent  purpose 
may  be  inferred  from  his  possession  of  it,  if  the  coin  be  found 
on  his  person. 

A  more  severe  punishment  is  awarded  when  the  offence 
concerns  Queen's  coin. 

248.  "Whoever  performs  on  any  coin  any  operation 

which  alters  the  appearance  of 
coii*S^if  i^^t?Sf  l?a?if  sSSTi  that  coin,  with  the  intention 
SSot1?»uo??^"'  ""'  *  different    ^hat  the  Said  coin  shall  pass 

as  a  coin  of  a  diflterent  descrip- 
tion, shall  be  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  three 
years,  and  shall  also  be  liable  to  fine. 

249.  Whoever  performs  on  any  of  the  Queen's 

coin  any  operation  which 
Q^^n^s^*oS^ThTn?en«?  altcrs  the  appearance  of  that 
tl^e^iJS^fStion!^'''''  ^''     coi^  with  thc  intention  that 

the  said  coin  shall  pass  as  a 
coin  of  a  diflterent  description,  shall  he  punished  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  seven  years,  and  shall  also  he  liable  to 
fine. 

The  operation,  whether  of  gilding,  or  silvering,  or  washing, 
&c.,  must,  it  seems,  be  of  such  a  kind,  and  so  far  completed  that 
the  coin  which  is  subjected  to  it,  is  actually  altered  in  appear- 
ance. The  evidence  must  shew  such  an  alteration,  coupled 
with  an  intention  that  the  altered  coin  shall  pass  as  coin  of  a  dif- 
ferent description.  It  will  be  observed  that  the  words  fraudu- 
lently and  dishonestly  are  not  used.  The  offence  is  therefore 
complete  though  no  fraudulent  purpose  can  be  proved.  And  it 
does  not  seem  necessary  to  shew  that  there  is  in  fact  a  descrip- 
tion of  coin  at  all  resembling  or  corresponding  to  the  altered 
coin.  The  act  of  altering  may  be  proved  by  evidence  that  coin 
so  gilded,  &c.,  was  found  in  the  prisoner's  house  or  had   been 


OFFENCES   RELATING   TO   COIN.  195 

procured  there^  and  that  the  wash  or  necessary  materials  were 
discovered  in  his  possession. 

The  distinction  between  coin  of  the  Queen  and  other  coin  is 
preserved. 

260.     Whoever,  having  coin  in  his  possession  with 
-,  „       ^        ♦!,     *    *      respect   to  which  the  offence 

Delivery  to  another  of  coin        ^/f       ,.        «       ..  n.  a  rt  r>-i^ 

ppsaessed  with  the  knowledge     defined  in  Scction  246  or  248 

that  it  IS  altered.  i        i  -^^    -i  i  i 

has  been  committed,  and  hav- 
ing known  at  the  time  when  he  became  possessed  of 
such  coin  that  such  offence  had  been  committed  with 
respect  to  it,  fraudulently  or  with  intent  that  fraud 
may  be  committed,  delivers  such  coin  to  any  other 
person,  or  attempts  to  induce  any  other  person  to 
receive  the  same,  shall  be  punished  with  imprison- 
ment of  either  description  for  a  term  which  may 
extend  to  five  years,  and  shall  also  be  liable  to 
fine. 

251.     Whoever,  having  coin  in  his  possession  with 
^ ,,         ^  ^       ,       ,      respect  to  which   the  offence 

Deliverr  of  Queen's    coin       j/T       ^   »        a      j.*         o^j^  c\Ar\ 

possessed  with  the  knowledge      defined  lU    SCCtlOU  247  Or    249 
that  it  is  altered.  .  ,  .ij     i  i   i 

has  been  committed,  and  hav- 
ing known  at  the  time  when  he  became  possessed  of 
such  coin  that  such  offence  had  been  committed  with 
respect  to  it,  fraudulently  or  with  intent  that  fraud 
may  be  committed,  delivers  such  coin  to  any  other 
person,  or  attempts  to  induce  any  other  person  to 
receive  the  same,  shall  be  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
ten  years,  and  shall  also  be  liable  to  fine. 

These  Sections  are  intended  to  punish  persons  who  are  tra- 
ders in  debased  or  altered  coin. 

.252.     Whoever  fraudulently,  or  with  intent  that 

fraud  may  be  committed,  is  in 
b/?*™n  who'^knew  iTtS  posscssiou  of  coiu  with  rcspcct 
SSJif^d^th^MSf.^^  ^^""^^    to  which  the  offence  defined  in 

either  of  the  Sections  246  or 
248  has  been  committed,  having  knoi^n  at  the  time  of 

2  c  2 


196  CHAPTER  XII. 

becoming  possessed  thereof,  that  such  offence  had  been 
committed  with  respect  to  such  coin,  shall  be  punished 
with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  three  years,  and  shall  also  be 
liable  to  fine. 

263.    Whoever  fraudulently,  or  with  intent  that 

fraud  may  be  committed,  is  in 

tJVyS^S^  Sfh?^iS?w  i?S    possession  of  coin  with  respect 

^slJssedPtiSJlof.^^  *''''**°^    to  which  the  offence  defined 

in  either  of  the  Sections  247  or 
249  has  been  committed,  having  known  at  the  time 
of  becoming  possessed  thereof  that  such  offence  had 
been  comnaitted  with  respect  to  such  coin,  shall  be 
punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  five  years,  and  shall 
also  be  liable  to  fine. 

The  raere  possession  of  debased  or  altered  coin  by  the  pro- 
fessional dealer  in  such  coin  is  hereby  made  punishable^  although 
no  dealing  with  it  by  delivering  to  others  &c.,  can  be  shewn. 
The  intention  that  the  coin  shall  be  nsed  for  the  purpose  of 
defrauding  others  is  part  of  the  definition. 

254.    Whoever  delivers  to  any  other  person  as 

genuine,  or  as  a  coin  of  a  dif- 
J'i^AZ  '^^i'XlSi  §i?t  ferent  description  from  what  it 
grSo"w'to'bl^?i7er'  ^^    is.  or  attempts  to  induce  any 

person  to  receive  as  genuine, 
or  as  a  different  coin  from  what  it  is,  any  coin  in  re- 
spect of  which  he  knows  that  any  such  operation  as 
that  mentioned  in  Sections  246,  247,  248  or  249  has 
been  performed,  but  in  respect  of  which  he  did  not,  at 
the  time  when  he  took  it  into  his  possession,  know 
that  such  operation  had  been  performed,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  two  years,  or  with  fine 
to  an  amount  which  may  extend  to  ten  times  the 
value  of  the  coin  for  which  the  altered  coin  is  passed 
or  attempted  to  be  passed. 


OFFENCES   EELATING  TO   GOVERNMENT  STAMPS.   197 

See  the  notes  to  the  preceding  Sections.  The  person 
punished  is  he  who^  not  being  a  dealer  in  debased  or  altered 
coin^  bat  having  such  coin  in  his  possession^  passes  it  off^  or 
attempts  to  pass  it  off  to  others. 

By  Act  XVII.  of  1885,  the  rupee  is  made  a  legal  tender  pro- 
vided it  has  not  been  diminished  below  a  certain  weight,  and 
provided  it  has  not  been  clipped  or  filed  or  defaced  otherwise 
than  by  nse.  It  will  be  observed  that  the  Code  does  not  make  the 
circolation  by  innocent  holders  of  coin  which  has  been  debased 
or  redaced  below  its  proper  weight  an  offence,  when  those  hold- 
ers are  unaware  that  it  has  been  so  debased  or  reduced.  It  is  an 
offence  to  pass  such  coin  only  when  the  person  passing  it  knows 
that  it  has  been  diminished  or  altered  by  one  of  the  operations 
which  previous  Sections  have  made  punishable. 

The  remaining  Sections  of  the  Chapter  provide  for  the 
punishment  of  offences  relating  to  certain  Government  stamps. 
The  stamps  protected  by  these  provisions  seem  to  have  little  in 
common  with  coin,  except  that  both  may  be  said  to  be  stamped 
and  issued  by  the  authority  of  Government.  The  stamps  are 
in  truth  nothing  more  than  impressions  upon  paper,  parchment^ 
or  any  material  used  for  writing,  made  by  Government  or  its 
officers,  for  the  purpose  of  revenue,  or  in  payment  for  service 
rendered. 

To  avoid  ambiguity  from  the  use  of  this  word  "  stamp,'^  it 
should  be  observed  that  it  is  used  throughout  the  following 
Sections  to  designate,  not  the  instrument  by  which  a  particular 
impression  is  made,  nor  the  paper  or  other  material  upon 
which  it  is  made,  but  the  impression  itself, — the  mark  set  upon 
the  paper  or  other  material.* 

The  Government  stamps  to  which  those  Sections  relate,  being 
stamps  from  which  the  Government  derives  a  revenue,  or  which 
are  issued  for  revenue  purposes,  are  quite  distinct  from  stamps 


*  In  the  late  Stamp  Act  the  word  **  Stamp"  except  when  the  contrary  shaU 
f4)pear  from  the  context  is  used  to  signify  a  stamped  piece  of  paper  or  other 
stamped  material  for  writing  on.    See  Section  56. 


19  oa.^^'^^  -"'• 

T,  19^  other p^^V^^^^i  as  stamps  affixed  to  or 

^^  ly  Gorerti^^^    jenotiDg  that  it  belongs  to  the  Govern- 

jmpre^^^  ^^  ^'^I^B^  merely  property  marks,  not  sources  of 

jpeBt    Tn^^    ^^^  ^j-^2j  in  a  subsequent  Chapter,  XVIII. 

fevena^f  ^   ^  re/dfang  to  counterfeit  stamps  will  be  found  to 

^^^       rtoiD  Sections  relating  to  counterfeit  coin,  and  the 

"^    the  l^^^^  ^^^^  sufficiently  explain  the  following  provi- 

noerning  counterfeit  stamps 


rese^ 
notes 
eioDS 


Q55.    TfioGver  counterfeits,  or  knowingly  performs 
^   tarfiiiing  a  Govern-    anj   part   of  the  process    of 
a,2???t*»*p-  counterf eitin  g,  any  stamp  issu- 

ed hy  Government  for  the  purpose  of  revenue,  shall  be 
punished  with  transportation  for  life,  or  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  ten  years,  and  shall  also  be  liable  to  fine. 

Explanation.  A  person  commits  this  offence 
who  counterfeits  by  causing  a  genuine  stamp  of  one 
denomination  to  appear  like  a  genuine  stamp  of  a 
different  denomination. 

*'  Counterfeit'*  has  been  explained  in  Section  28,  and  is  fur- 
ther explained  here. 

"  Perform  any  part  of  the  process  of,  &c/'  The  impression 
and  not  the  die  is  meant.  It  seems  that  some  part  of  this  im- 
pression must  be,  if  not  completed,  yet  sufficiently  complete  to 
shew  the  intention. 

256.    Whoever  has  in  his  possession  any  instrument 

or  material,  for  the  purpose  of 
.tSSi^??"SS;i^a?'f^^?e  l>eing  used,  or  knowing  or 
SSr^iSnent  Bt^p''"''"^  *    haviug  roasou  to  believe  that 

it  is  intended  to  be  used,  for 
the  purpose  of  counterfeiting  any  stamp  issued  by 
Government  for  the  purpose  of  revenue,  shall  be  pu- 
nished with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  seven  years,  and  shall 
also  be  liable  to  fine. 

Here  the  punishment  is  directed  to  the  offence  of  attempting 
or  prepariug  to  counterfeit.     The  possession  of  any  instrument 


OFPENCES   RELATING  TO   GOVERNMENT   STAMPS.   199 

by  which  the  counterfeit  stamp  impression  is  made^  with  a 
criminal  intention^  or  even  the  possession  of  any  material 
with  the  like  intent  is  punished. 

'*  Instrument^'  may  denote  a  die  or  similar  instrument,  the 
mere  possession  of  which,  if  not  satisfactorily  accounted  for, 
may  prove  an  intention  to  use  it  for  the  purpose  of  counterfeit- 
ing. *'  Material  for  &c,/'  may  include  the  paper  on  which,  or 
some  one  of  the  ingredients  (in  a  more  or  less  forward  state  of 
preparation)  whereby  the  impression  is  made.  The  possession 
of  such  materials  can  of  course  be  punishable  under  this 
clause  only  where  the  criminal  purpose  is  established  to  the 
satisfaction  of  the  Court. 

257.  Whoever  makes,  or  performs  any  part  of  the 
Making  or  seUing  instru-    process  of  making,   or  buys, 

S^feuSi'^V^'^'le^i^^SSi  or  seUs,  or  disposes  of,  any  in- 
■*^™^^-  strument,  for  th^  purpose  of 

being  used,  or  knowing  or  having  reason  to  believe 
that  it  is  intended  to  be  used,  for  the  purpose  of 
counterfeiting  any  stamp  issued  by  Government  for 
the  purpose  of  revenue,  shall  be  punished  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to  fine. 

258.  Whoever  sells,  or  offers  for  sale,  any  stamp 

Sale  of  counterfeit  Govern-      wHch  hc  kuOWS  Or  haS  rcaSOU 

ment  stamp.  ^q  believc  to  be  a  counterfeit 

of  any  stamp  issued  by  Government  for  the  purpose 
of  revenue,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to 
seven  years,  and  shall  also  be  liable  to  fine. 

259.  Whoever  has  in  his  possession  any  stamp  which 
Having  possession  of  acoun-    ^c  kuo ws  to  bc  a  Counterfeit  of 

ter<eit(fovemment  stamp,  ^^y  g^amp   isSUCd  by    GoVCm- 

ment  for  the  purpose  of  revenue,  intending  to  use  or 
dispose  of  the  same  as  a  genuine  stamp,  or  in  order  that 
it  may  be  used  as  a  genuine  stamp,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  seven  years,  and  shall  also  be 
liable  to  fine^ 


200  CHAPTER  XII. 

260.  Whoever  uses  as  genuine  any  stamp,  knowing 
„  .  ^  it  to  be  a  counterfeit  of  any 

tTsine  as  grenuine  a  Govern-         .  •  j    -l       i-i  j. 

mentstampknowntobecoun*      Stamp    ISSUeCl    DY    brOYemment 

for  the  purpose  of  rcYenue, 
shall  be  punished  with  imprisonment  of  either  de- 
scription for  a  term  which  may  extend  to  seven  years, 
or  with  fine,  or  with  both. 

261.  Whoever,    fraudulently  or   with  intent  to 

cause   loss    to     Government, 
Bfp^ing  any  writing  from  a    removcs  or  cflFaces  from  any 
menX^p^^^^^o^^"^    substaucc  bearing  any  stamp 
ftf^JTiSS^^tfo^SUYolfSS    issued  by  Government  for  the 
Government.  purposc  of  revcnue,  auy  wri- 

ting or  document  for  which 
such  stamp  has  been  used,  or  removes  from  any 
writing  or  document  a  stamp  which  has  been  used 
for  such  writing  or  document,  in  order  that 
such  stamp  'may  be  used  for  a  different  writing  or 
document,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to 
three  years,  or  with  fine,  or  with  both. 

262.  Whoever,  fraudulently    or   with  intent    to 

"Using  a  Government  Stamp      CaUSC     loSS      tO      Government, 
known  to  liave  been  before  n  i 

used.  uses  for  any  purpose  a  stamp 

issued  by  Government  for  the  purpose  of  revenue 
which  he  knows  to  have  been  before  used,  shall  be 
punished  with  imprisonment  of  either  description, 
for  a  term  which  may  extend  to  two  years,  or  with 
fine,  or  with  both. 

263.  Whoever,   fraudulently   or  with    intent  to 

Brasnre  of  mark  denoting      CaUSe      lOSS      to     Gt)Vernment, 

that  stamp  has  been  used.  erascs  or  removcs  from  a 
stamp  issued  by  Government  for  the  purpose  of  revenue 
any  mark  put  or  impressed  upon  such  stamp  for  the 
purpose  of  denoting  that  the  same  has  been  used,  or 
knowingly  has  in  his  possession,  or  sells  or  disposes 
of  any  such  stamp  from  which  such  mark  has  been  eras- 
ed or  removed,  or  sells,  or  disposes  of  any  such  stamp 
which  he  knows  to  have  been  used,  shall  be  punished 


WEIGHTS  AND   MEASURES.  201 

with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  three  years,  or  with  fine,  or  with 
hoth. 


Chapter  XIII. 

OF  OFFENCES  RELATING  TO  WEIGHTS  AND 
MEASURES. 


The  offences  punishable  by  this  Chapter  are  not  defined  with 
reference  to  any  precise  standard  of  weight  or  measure  estab- 
lished by  law.  K  false  weight  or  measure  here  signifies  that, — 
taking  the  law  or  the  ordinary  usage  of  the  place,  or  the  com- 
mon understanding  of  the  parties,  to  have  fixed  on  a  certain 
known  instrument  of  weight  or  measure,  with  reference  to 
which  two  persons  deal  together, — the  false  dealer  by  deceit 
substitutes  another  weight  or  measure,  in  order  to  defraud. 

The  intention  to  defraud,  or  that  the  false  weight  or  mea- 
sure shall  be  used  by  other  persons  in  order  to  defraud,  is 
an  essential  part  of  the  offence.  The  balance  or  scales, 
weights,  &c.,  used  may  be  and  are  probably  often  of  the  rudest 
construction.  Where  their  defects  are  visible  to  a  purchaser, 
and  there  is  no  attempt  to  conceal  them,  there  can  be  no 
reason  for  imputing  an  intention  to  defraud.  On  the  other 
hand,  the  use  of  a  false  balance  artfully  contrived  to  elude 
detection,  carries  with  it  a  strong  presumption  that  it  is  used 
in  order  to  defraud. 

264.    Whoever  fraudulently  uses  any  instrument 

Praudnlent  uee  of  false  in-      ^r  Weighing  which   he    kuOWS 

rtrument  for  weighing.  ^q  \yQ  f^ige,  shall  be  puuished 

with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  one  year,  or  with  fine,  or  with 
hoth. 

2  D 


202  CHAPTER  XIII. 

265.  Whoever  fraudulently  uses  any  false  weight 
pranduient  use  of  false    OF  false  measuTe  of  length  or 

weight  or  measure.  Capacity,  or  fraudulently  uses 

any  weight  or  any  measure  of  length  or  capacity  as 
a  different  weight  or  measure  from  what  it  is,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  one  year,  or  with  fine,  or 
with  both. 

266.  Whoever  is  in  possession  of  any  instrument 
Being  in  possession  of  false    ^r  Weighing,  Or  of  any  weight, 

weights  or  measures.  ^j.  ^f  g^j^y  mcaSUrC  of  length  Or 

capacity,  which  he  knows  to  be  false,  and  intending 
that  the  same  may  be  fraudulently  used,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  one  year,  or  with  fine,  or 
with  both. 

As  in  the  case  of  false  coin,  a  weighty  circumstance  of 
suspicion  is  by  this  Section  made  part  of  the  definition  of  an 
oflfence. 

It  is  the  intention  that  the  false  instrument  shall  be  used  to 
defraud,  that  is  material.  The  proof  of  such  intention  must,  as 
in  other  cases,  be  made  out  to  the  satisfaction  of  the  Court. 
The  mere  possession  of  the  false  instrument,  if  such  possession 
cannot  be  satisfactorily  explained  and  accounted  for,  is  suffi- 
cient ground  for  presuming  an  intention  to  use  it  fraudulently. 

267.  Whoever  makes,   sells,   or  disposes  of  any 
Making    or  eemng   false     instrument   for  weighing,   or 

weights  or  meaBurea.         ,     ^j^j  weight,  or  any  moasure 

of  length  or  capacity  which  he  knows  to  be  false,  in 
order  that  the  same  may  be  used  as  true,  or  knowing 
that  the  same  is  likely  to  be  used  as  true,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  one  year,  or  with  fine, 
or  with  both. 


PUBLIC   NUISANCES.  203 


Chapter  XIV. 


OF  OFFENCES  AFFECTING  THE  PUBLIC 

HEALTH,  SAFETY,  CONVENIENCE, 

DECENCY  AND  MORALS. 


268.     A  person  is  guilty  of  a  public  nuisance,  who 

does  any  act  or  is  guilty  of  an 
illegal  omission  which  causes 
any  common  injury,  danger,  or  annoyance  to  the 
public,  or  to  the  people  in  general  who  dwell  or 
occupy  property  in  the  vicinity,  or  which  must 
necessarily  cause  injury,  obstruction,  danger,  or 
annoyance  to  persons  who  may  have  occasion  to  use 
any  public  right. 

A  common  nuisance  is  not  excused  on  the  ground 
that  it  causes  some  convenience  or  advantage. 

See  the  explanations  of  ''  person/*  '^  public/'  "  injury*'  and 
"illegal/' — Sections  11,  12,  43,  44.  The  definition  of  a  public 
or  common  nuisance  is  material  with  reference  to  Sec.  290  of 
this  Chapter,  which  Section  provides  a  punishment  for  the  of- 
fence of  committing  a  public  nuisance  in  any  case  not  otherwise 
punishable  by  the  Code. 

To  constitute  a  nuisance  there  must  be  some  act  or  illegal 
omission,  injurious,  dangerous,  or  annoying,  not  merely  to  an 
individual  or  a  small  number  of  persons,  but  to  the  public  at 
large  or  to  some  class  of  the  public, — such  as  the  neighbouring 
community,  or  those  who  dwell  or  occupy  property  near  the 
place. 

There  are  many  things,  which  may  be  nuisances  and  are 
offences  when  done  in  populous  places,  although  they  are  either 
innocent  or  not  deemed  deserving  of  punishment  when  done  in 
a  retired  locality.  Suppose  a  house  in  the  country  is  used  for 
the  purpose  of  canning  on  a  dangerous  trade  or  one  which 
2  D  2 


204  CHAPTEE  XIII. 

renders  the  air  unwholesome  or  disagreeable  to  the  senses, — or 
suppose  a  private  way  leading  to  a  house  is  obstructed  or  made 
dangerous, — the  injury  or  annoyance,  if  it  aflfects  only  the  resi- 
dents of  two  or  three  other  houses,  will  not  necessarily  make 
this  a  public  nuisance.  * 

It  is  not  easy  to  say  how  many  persons  must  suflfer,  or  be  in 
danger  of  suflfering,  to  make  a  nuisance  public  or  common.  But 
it  seems  the  thing  done,  though  the  general  public  need  not  be 
actually  injured  by  it,  must  be  of  a  nature  to  produce  injury, 
annoyance,  &c.,  to  all,  and  must  do  so  in  fact  to  all  who  are  in 
the  particular  locality  or  otherwise  within  the  influence  of  the 
act.  One  who  indecently  exposes  his  person  to  a  single  indivi- 
dual, though  it  be  in  a  public  place,  yet  not  within  public  view, 
is  not  punishable  for  a  nuisance.  But  if  the  exposure  were  to 
several,  or  if  many  could  have  seen  it,  being  public,  if  they  had 
looked,  the  oflTence  here  defined  would  be  committed. 

The  nuisance  may  be  caused  by  doing  a  thing  which  is 
injurious  or  annoying,  or  by  neglecting  to  do  that  which  th6 
public  health  or  safety  requires  to  be  done.  For  example,  by 
keeping  a  house,  &c.,  in  a  filthy  state,  neglecting  ordinary  pre- 
cautions during  repairs,  &c.  In  the  latter  case  the  omission  must 
be  *'  illegal.^'     See  the  explanation  of  this  word.  Section  43. 

The  following  are  instances  of  public  nuisances.  Obstruc- 
tions of  high  ways,  navigable  rivers,  and  the  like ;  injuries  to 
such  ways  and  places ;  neglect  or  refusal  by  those  whose  duty 
it  is  so  to  do,  to  keep  them  in  repair ;  the  carrying  on,  in 
populous  localities  or  near  a  highway,  of  trades  or  occupations 
injurious  to  health  or  comfort ;  making  great  noises  to  the  dis- 
turbance of  the  neighbourhood;  keeping  large  quantities  of 
gunpowder  in  populous  places  to  the  danger  of  the  public 
safety  ; — and  other  acts  of  a  similar  tendency. 

The  latter  clause  of  the  definition  seems  to  comprehend  such 
nuisances  as  obstructions  to  public  roads,  navigable  rivers,  &c. 
In  such  nuisances,  it  does  not  seem  to  be  essential  to  shevf 
actual  injury   or   annoyance  &c.,  to  persons  who  use  the  road. 


PUBLIC   NUISANCES.  205 

It  18  sufficient  if  the  obstruction  is  calculated  to  injure  all  who 
may  choose  and  have  a  right  to  use  the  way.  And  the  person 
causing  the  obstruction  or  other  nuisance,  cannot  excuse  it  by 
shewing  that,  in  other  respects,  and  on  the  whole,  his  act  has 
worked  some  advantage  or  improvement, — as  that  he  has  open- 
ed a  better  way,  or  has  improved  the  navigation  of  a  river,  &c. 
But  in  considering  whether  an  act  or  omission  which  causes 
injury  &c.,  in  a  slight  degree,  or  in  some  extreme  cases  only, 
and  as  an  uncertain  and  rare  consequence,  amoun  ts  to  a  public 
nuisance,  the  General  Exception  contained  in  Section  95,  must 
be  remembered. 

The  general  punishment  provided  for  committing  a  public 
nuisance  is  not  applicable  to  acts  which  are  otherwise  expressly 
made  punishable.  This  Chapter  contains  special  provisions  for 
the  punishment  of  many  such  acts  as  those  above  mentioned : 
and  to  those  thus  specifically  dealt  with,  the  290th  Section  is 
inapplicable. 

See  also  *Act  XXV.  of  1 86 1  Chapter  XX.  f Of  Local  Nuisances.  J 

269.     Whoever  unlawfully  or  negligently  does  any 

act  which  is,  and  which  he 
8p?eS' mfectioS  of  a^y  dis^    knows  or  has  rcason  to  believe 

•aaedangerouBtolife.  ^^  ^^^    ^^^^  ^^  ^p^^^^  ^^^  j^^ 

fection  of  any  disease  dangerous  to  life,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  six  months,  or  with  fine, 
or  with  both. 

If  a  man  is  attacked  by  a  contagious  and  deadly  disease  and 
needlessly  goes  abroad  with  it  in  the  public  way,  or  if  a  person 
carries  out  a  child  so  infected,  he  does  what  he  may  be  supposed 
to  know  to  be  likely  to  spread  the  infection.  And  unless  some 
lawful  occasion  or  reason  for  this  conduct  can  be  shewn,  as  that 
the  sick  person  had  been  directed  to  be  removed  to  a  Hospital, 
and  that  the  removal  was  performed  with  due  caution,  the  act 
will  be  an  oflfence  punishable  under  this  Section. 

•  The  Code  of  Criminal  Procedure. 


206  CHAPTER   XIII. 

270.  Whoever  malignantly  does  any  act  which  is, 

and  which  he  knows  or  has 

Malignant    act    likely    to  i-ii*  x-i.imi 

spread  infection  of  any  dis-      TCaSOn   tO  DeJieve    tO  DC   llKely 
ease  dangerous  to  life.  i  j  xi       •    i?     x  •  ^ 

to  spread  the  infection  of  any 
disease  dangerous  to  life,  shall  he  punished  with  im- 
prisonment of  either  description  for  a  terra  which  may 
extend  to  two  years,  or  with  fine,  or  with  both. 

The  oflfence  here  is  an  aggravation  of  that  which  is  pumshed 
by  the  preceding  Section.  The  malignant  intention  to  spread  the 
infection  is  part  of  the  definition.  Suppose  a  person  having 
small  pox  is  exposed  in  a  public  street,  either  to  excite  charity, 
or  because,  through  fear.,  he  has  been  removed  from  a  house 
where  he  was  lodged, — the  oflfence  committed  by  those  who 
exposed  him  would  not  probably  come  within  this  Section. 

271.  Whoever  knowingly  disobeys  any  rule  made 

Dieobedlence  to  a  quaraa-  a^d  promulgated  by  the  Go- 
tine  rule,  vernment  of  India,  or  by  any 
Government,  for  putting  any  vessel  into  a  state 
of  quarantine,  or  for  regulating  the  intercourse  of 
vessels  in  a  state  of  quarantine  with  the  shore,  or 
with  other  vessels,  or  for  regulating  the  intercourse 
between  places  where  an  infectious  disease  prevails 
and  other  places,  shall  be  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
six  months,  or  with  fine,  or  with  both. 

272.  Whoever  adulterates  any  article  of  food  or 
Adulteration   of  food  op    drink,    SO   as  to   make  such 

drink  which  is  intended  for  i«   i  •  p      j      ^^^ 

Bale.  article    noxious    as    lood    or 

drink,  intending  to  sell  such  article  as  food  or  drink, 
or  knowing  it  to  he  likely  that  the  same  will  he  sold 
as  food  or  drink,  shall  he  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend 
to  six  months,  or  with  fine  which  may  extend  to  one 
thousand  Rupees,  or  with  hoth. 

The  mixing  noxious  ingredients  in  food  or  drink,  or  other- 
wise rendering  it  unwholesome  by  adulteration,  whether  it  be 
intended  for  the  use  of  man  or  of  any  animal^  is  hereby  punished. 


SALE   &C.,   OF  NOXIOUS  ARTICLES.  207 

273.  Whoever  sells,  or  offers  or  exposes  for  sale, 
Sale  of  noxious  food  op    ^s  food  or  drink,  any  article 

**'^^-  which  has  been  rendered  or 

has  become  noxious,  or  is  in  a  state  unfit  for  food 
or  drink,  knowing  or  having  reason  to  believe  that 
the  same  is  noxious  as  food  or  drink,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  or  six  months,  or  with 
fine  which  may  extend  to  one  thousand  Rupees,  or 
with  both. 

Whether  it  has  been  adulterated  so  as  to  become  noxious, 
or  has  become  unfit  for  food  or  drink  by  decay  &c.,  or  has 
never  been  fit  for  food, — a  sale  or  attempt  to  sell  any  such 
article  by  one  who  knows  its  noxiousness,  is  an  offence  if  he 
offers  it  for  sale  as  food  or  drink.  The  purpose  for  which  the 
sale  is  made  is  all-important.  Suppose  meat  to  be  sold  as  food 
for  dogs  and  not  for  men,  it  may  be  that  it  would  not  be  unfit 
for  the  purpose  intended,  although  not  suflSciently  good  for  the 
food  of  man. 

274.  Whoever  adulterates  any  drug  or  medical  pre- 
,^  ,,    ,.      ^^  paration  in  such  a  manner  as 

Adulteration  of  draff  8.  f    <,  ji         /%«  i 

to  lessen  the  efficacy,  or  change 
the  operation  of  such  drug  or  medical  preparation, 
or  to  make  it  noxious,  intending  that  it  shall  be 
sold  or  used  for,  or  knowing  it  to  be  likely  that  it  will 
be  sold  or  used  for,  any  medicinal  purpose,  as  if  it 
had  not  undergone  such  adulteration,  shall  be  punish- 
ed with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  one  thousand  Rupees,  or  with  both. 

275.  Whoever,  knowing  any  drug  or  medical  pre- 
«  ,    ^  ^  ,.    *  ^  ^  paration  to  have  been  adulter- 

Sale  of  adulterated  drugs.         ^i     i    •  i  . 

ated  m  such  a  manner  as  to 
lessen  its  efficacy,  to  change  its  operation,  or  to  render 
it  noxious,  sells  the  same,  or  offers  or  exposes  it  for 
sale,  or  issues  it  from  any  dispensary  for  medicinal 
purposes  as  unadulterated,  or  causes  it  to  be  used 
for  medicinal  purposes  by  any  person  not  knowing  of 


208  CHAPTER   XIII. 

the  adulteration,  shall  he  punished  with  imprison- 
ment of  either  description  for  a  term  which  may 
extend  to  six  months,. or  with  fine  which  may  extend 
to  one  thousand  Rupees,  or  with  both. 

276.  Whoever  knowingly  sells,  or  oflfers  or  exposes 

Saleofanydrugae  a  differ-      for  Sale,  Or   isSUCS   from    a  dis- 

ent  drug  or  preparation.  pensary  for  mcdiciual  purposes 

any  drug  or  medical  preparation,  as  a  different  drug 
or  medical  preparation,  shall  be  punished  with  im- 
prisonment of  either  description  for  a  term  which 
may  extend  to  six  months,  or  with  fine  which  may 
extend  to  one  thousand  Rupees,  or  with  both. 

277.  Whoever  voluntarily  corrupts  or  fouls  the 
Fouling  the  water  of  a  pub.     watcr  of  any  public  spring  or 

lie  spring  or  reservoir.  rcservoir,  SO  as  to   rcudcr  it 

less  fit  for  the  purpose  for  which  it  is  ordinarily 
used,  shall  be  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  three 
months,  or  with  fine  which  may  extend  to  five 
hundred  Rupees,  or  with  both. 

The  water  must  be  for  public  use.  See  note  to  Section  268. 
Springs  and  reservoirs  are  alone  mentioned.  The  provision 
therefore  does  not  extend  to  the  waters  of  rivers,  &c.,  although 
they  may  ordinarily  be  used  for  drinking  and  other  domestic 
purposes. 

"  Voluntarily  corrupts,  &c.''  In  such  acts  as  suflfering  the 
washings  or  refuse  of  an  oflfensive  trade  to  flow  into  a  tank  of 
drinking  water,  or  washing  skins,  &c.,  there  cannot  but  be  a 
voluntary  fouling.     See  Section  39. 

The  purpose  for  which  the  water  is  ordinarily  used  must  be 
considered  in  determining  whether  there  has  been  a  voluntary 
corrupting  within  the  meaning  of  this  Section. 

278.  Whoever  voluntarily  vitiates  the  atmosphere 
Making  atmosphere  noxi-    ^  any  placc  SO  as  to  make  it 

Otis  to  health.  noxious  to  the  health  of  per- 

sons in  general  dwelling  or  carrying  on  business  in 
the  neighbourhood  or  passing  along  a  public  way, 


EASH  DRIVING  OR  RIDING,   &C.  209 

shall  be  punished  with  fine  which  may  extend  to  five 
handred  Rupees. 

See  the  notes  to  Section  268^  and  to  the  last  preceding 
Section. 

In  several  of  the  snbseqaent  Sections  of  this  Chapter,  parti- 
cular acts  done  so  rashly  or  negligently  as  to  endanger  human 
Ufe  or  the  personal  safety  of  others,  or  as  to  be  Ukely  to  cause 
hurt,  are  made  punishable.  In  a  later  Chapter  there  is  a  general 
provision  to  the  like  effect  (see  Section  336) .  The  offences  thus 
made  punishable  are  complete,  although  no  personal  hui*t  may 
be  sustained.  Where  the  rashness  or  negligence  causes  bodily 
pain  ("hurt"  or  '^  grievous  hurt")>  it  is  punishable  under  Sec- 
tions 337,  338.  Where  it  causes  death,  the  offender  may  be 
guilty  of  culpable  homicide  which  will  amount  to  murder  if  the 
act  is  of  that  imminently  dangerous  and  reckless  kind  which 
is  contemplated  by  Section  300.  As  to  this,  see  the  4th  Clause 
of  that  Section. 

279.    Whoever  drives  any  vehicle  or  rides  on  any 
Bash  driving  or  riding  on  a    public  Way  in  a  manner  so  rash 
pubuoway.  qj.  negligent  as  to  endanger 

human  life,  or  to  be  likely  to  cause  hurt  or  injury  to 
any  other  person,  shall  be  punished  with  imprison- 
ment of  either  description,  lor  a  term  which  may  ex- 
tend to  six  months,  or  with  fine  which  may  extend 
to  one  thousand  Rupees,  or  with  both. 

This  offence  against  the  public  safety  is  completed  although 
the  rash  or  negligent  act  results  in  no  injury  to  life  or  proper- 
ty. The  cases  contemplated  in  this  and  the  following  Sections 
seem  to  be  those  in  which  there  is  indifference  or  rashness  in 
performing  a  lawful  act,  and  therefore  criminality,  but  not  in 
the  same  degree  as  where  there  is  a  determination  to  do  Wrong. 
If  a  man  is  so  rash  as  to  take  on  himself  an  office  or  duty 
requiring  skilly  which  he  cannot  adequately  discharge,  his  con- 
duct has  in  it  a  taint  of  criminality,  and  it  will  be  no  defence  to 
shew  that  he  acted  to  the  best  of  his  ability. 
2   £ 


210  CHAPTER  XIV. 

280.    Whoever  navigates  any  Vessel  in  a  manner 

so  rash  or   negligent  as    to  en- 
Bash  navigation  of  a  Teeeel.    ^^^g^^    J^^^^^    ^^^   ^J.    ^^ 

cause  hurt  or  injury  to  any  other  person,  shall  he 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  six  months,  or  with  fine 
which  may  extend  to  one  thousand  Rupees,  or  with 
both. 


See  the  note  to  the  last  preceding  Section.  Act  I.  of  1859, 
For  the  amendment  of  the  law  relating  to  Merchant  Seamen, 
provides  for  the  panishment  of  oflfences  of  this  nature  commit- 
ted by  the  Masters  and  Sailors  of  British  sea-going  vessels. 

281.  Whoever  exhibits  any  false  light,  mark,  or 
BTiiibition  of  a  false  Ught,    huoy,  intending  or  knowing  it 

mark,  OP  buoy.  ^q  \^q  lively  that  such  exhibi- 

tion will  mislead  any  navigator,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  seven  years,  or  with  fine,  or 
with  both. 

282.  Whoever  knowingly  or  negligently  conveys, 

or  causes  to  be  conveyed,  for 

OonTOTing  person  by  water      *  .  v  x        • 

for  hire  ina  vessel  overload-    hirc,  any  pcrson  by  watcr  in 

edonmsafe.  ^^^  VCSSCl,  whcu  that  VeSSCl  is 

in  such  a  state  or  so  loaded  as  to  endanger  the  life 
of  that  person,  shall  be  punished  with  imprisonment 
of  either  description,  for  a  term  which  may  extend  to 
six  months,  or  with  fine  which  may  extend  to  one 
thousand  Rupees,  or  with  both. 

Boatmen  plying  for  hire  on  rivers,  at  ferries,  Ac.,  whose 
boats  are  overloaded,  or  are  not  in  a  fit  condition  oafely  to  carry 
passengers,  are  criminally  responsible  for  their  neglect.  It 
should  be  proved  that  there  was  some  risk  to  life  caused,  and 
the  circumstances  from  which  knowledge  or  negligence  is  to" 
be  inferred  should  be  shewn. 


OBSTBUCTING  NAVIGATION,   USING  POISON,   &C.    211 

288.    Whoever  by  doing  any  act,  or  by  omitting 
Danger  or  obstruction  in  a    t^  take  Order  with  any  pro- 

imbUo  way  or  naYlgation.  p^^^^y    ^  his  pOSSOSSion   OF  Un- 

der  his  charge,  causes  danger,  obstruction,  or  injury 
to  any  person  in  any  pubKc  way  or  public  line  of 
navigation,  shall  be  punished  with  fine  which  may 
extend  to  two  hundred  Rupees, 

Generally  a  man  is  bound  so  to  use  his  property  as  not  to 
injure  others.  The  offence  here  punished  is  the  public  nuisance 
of  causing  obstruction  &c.,  in  a  public  way  or  navigable  river  or 
canal.  There  must  be  some  negligent  act  or  improper  omission. 
Suppose  a  boat  sinks  in  the  navigable  channel  of  a  river  and 
causes  obstruction  or  danger ; — if  the  boat  was  lost  by  the 
mere  negligence  of  those  who  had  charge  of  it,  they  will  be 
punishable  under  this  Section.  It  seems  from  the  terms  of  the 
section  that  there  must  be  evidence  that  some  person  has  actu- 
ally suffered  injury  or  been  obstructed,  &c. 

284.     Whoever  does,  with  any  poisonous  substance 
Negligent  oonduot  with  re-    auv  act  SO  rashlv  or  neffliffent- 

•peot  to  any  poisonous  sab«      i^'.  ,         •',  ^t/» 

■tanoe.  ly  as  to  endanger  human  life, 

or  to  be  likely  to  cause  hurt  or  injury  to  any  person,  or 
knowingly  or  negligently  omits  to  take  such  order 
with  any  poisonous  substance  in  his  possession  as  is 
suflScient  to  guard  against  probable  danger  to  human 
life  from  such  poisonous  substance,  shall  be  pun- 
ished with  imprisonment  of  either  description,  for  a 
term  which  may  extend  to  six  months,  or  with  fine 
which  may  extend  to  one  thousand  Rupees,  or  with 
both. 

Suppose  a  deadly  poison  is  left  exposed  in  a  place  usually 
frequented  by  cbildren.  This^  like  other  Sections  of  this  Chap- 
ter^ proceeds  on  the  principle  that  carelessness,  when  sufficient 
in  degree,  is  to  be  regarded  as  criminal  notwithstanding  that  it 
may  not  have  occasioned  hurt.  In  this  and  the  following  Sec- 
tion, the  offences  defined  are  not  necessarily  of  the  nature  of 
public  nuisances.  For  the  offence  may  be  committed  in  places 
2  £  2 


212  CHAPTER  XIV. 

where  persons  do  not  congregate  together.  It  is  sufficient 
that  the  life  of  a  single  person  may  be  pat  in  danger. 

285.  Whoever  does,  with  fire  or  any  combustible 

matter,  any  act  so  rashly  or 
Je^eiS'l^e'^^SSL^^lU  negligently  as  to  endanger 
°^***'-  human  life,  or  to  be  likely  to 

cause  hurt  or  injury  to  any  other  person,  or  knowingly 
or  negligently  omits  to  take  such  order  with  any  fire 
or  any  combustible  matter  in  his  possession  as  is 
Bufficient  to  guard  against  any  probable  danger  to 
human  life  from  such  fire  or  combustible  matter, 
shall  be  punished  with  imprisonment  of  either  de- 
scription, for  a  term  which  may  extend  to  six  months, 
or  with  fine  which  may  extend  to  one  thousand 
Rupees,  or  with  both. 

See  the  note  to  the  preceding  Section.  It  will  be  observed 
that  the  punishment  in  these  and  the  subsequent  Sections  is 
directed  against  an  act  which  may  be  dangerous  or  cause  hurt 
to  human  life.  If  the  expression  ''  injury  to  any  other  person'* 
is  to  be  understood  to  mean  not  only  a  personal  injury  but  any 
injury  (see  Section  44)  a  risk  of  danger  to  property  will  be  suffi- 
cient to  make  a  man  criminally  responsible  for  bis  negligence. 

286.  Whoever  does,  with  any  explosive  substance, 
Negligent  conduct  with  re-    auv  act  SO  rashlv  or  ncffliffent- 

speotto  any  explosive  sub-      ,•'       ,  j         "       ,  it 

stance.  ly  as  to  endanger  human  Me, 

or  to  be  likely  to  cause  hurt  or  injury  to  any  other  per- 
son, or  knowingly  or  negligently  omits  to  take  such 
order  with  any  explosive  substance  in  his  possession 
as  is  sufficient  to  guard  against  any  probable  danger 
to  himian  life  from  that  substance,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  six  months,  or  with  fine  which 
may  extend  to  one  thousand  Rupees,  or  with  both. 

Keeping  a  large  quantity  of  gunpowder  or  fireworks,  Ac., 
in  a  populous  place,  even  though  they  be  not  negligently  kept, 
may  perhaps  constitute  an  offence  within  this  Section.  Any 
explosive  substance  kept  in  the  possession  of  a  person  who 


NEGLIGENCE  AS  TO  MACHINEEY  OB  REPAIRS,   &0.   213 

knows  its  qualities,  in  whatever  place  it  may  be  kept,  should  be 
guarded  with  a  care  proportionate  to  the  risk  of  danger  to 
human  life  which  it  may  occasion.  Under  the  first  part  of  the 
Section,  throwing  fireworks  in  a  frequented  place  where  there 
are  people  on  foot  or  horseback,  &c.,  may  be  punishable.  The 
Police  Act  for  the  Presidency  Towns  (Act  XIII.  of  1856), 
has  a  provision  on  this  subject  which  (with  all  the  provisions 
of  that ''  local  law")  will  remain  unaffected  by  this  Code. 

287.  Whoever  does,  with  any  machinery,  any  act 

so  rashly  or  negligently  as  to 
.52Wy^2^eJ?St2;  endanger  human  life,  or  to  be 
S£SS?i$ttieoffeSe1.!'   '''''    likely  to  cause  hurt  or  injury 

to  any  other  person,  or  know- 
ingly or  negligently  omits  to  take  such  order  with 
any  machinery  in  his  possession  or  under  his 
care  as  is  sufficient  to  guard  against  any  probable 
danger  to  human  life  from  such  machinery,  shall  be 
punished  with  imprisonment  of  either  description,  for 
a  term  which  may  extend  to  six  months,  or  with 
fine  which  may  extend  to  one  thousand  Rupees,  or 
with  both. 

The  words  ''  or  under  his  care,''  which  do  not  occur  in  the 
preceding  Sections,  are  probably  inserted  here  to  include  En- 
gineers &c.,  who  may  be  in  charge  of  the  machinery.  The  law 
requires  that  there  shall  be  a  competent  knowledge  of  their 
duty  in  such  persons,  and  the  words  ''  knowingly  or  negli- 
gently*' must  be  interpreted  accordingly. 

288.  Whoever,  in  pulling  down  or  repairing  any 

building,  knowingly  or  negli- 

Negligenoe  with  rospeot  to  ±^  •!.    j.    j.   -t  i        S 

ptdling   down    or  repairing      gCUtly  OmitS  tO  take  SUCh  OrdCr 

Suudings.  ^j^^  ^^^^  building  as  is  suffi- 

cient  to  guard  against  any  probable  danger  to  human 
life  from  the  fall  of  that  building,  or  of  any  part 
thereof,  shall  be  punished  with  imprisonment  of 
either  description,  for  a  term  which  may  extend  to  six 
months,  or  with  fine  which  may  extend  to  one  thousand 
Kupees,  or  with  both. 


214  CHAPTER  XIV, 

^'  Such  order  as  is  sufficient/'  &c»  The  degree  of  caation  is 
in  proportion  to  the  apparent  necessity  for  it.  If  the  building 
is  in  a  retired  place  where  there  is  no  probability  of  persons 
passing  by^  measures  of  precaution  may  be  sufficient  which 
if  the  building  is  in  a  populous  town  and  the  repairs  &c.,  are 
done  at  a  time  of  day  when  the  streets  are  usually  thronged^ 
would  be  wholly  inadequate.  The  words  '*  the  fall  of  that 
building,"  &c.,  seem  to  exclude  the  not  improbable  case  of 
danger  to  life  arising  from  the  risk  of  the  fall  of  scaffoldings 
and  other  material^,  provided  for  repairing  it. 

289.  Whoever  knowingly  or  negligently  omits  to 
Negiigenoewith  respect  to    take     such    Order    with    any 

any  animaL  animal  in  his  possession  as  is 

sufficient  to  guard  against  any  probable  danger  to 
human  life,  or  any  probable  danger  of  grievous  hurt 
from  such  animal,  shall  be  punished  with  imprison- 
ment of  either  description,  for  a  term  which  may 
extend  to  six  months,  or  with  fine  which  may  extend 
to  one  thousand  Rupees,  or  with  both. 

''  Knowingly  or  negligently  &c/*  Where  the  animal  is  not 
of  such  a  description  as  in  general  from  its  ferocity  to  en- 
danger the  persons  of  those  whom  it  meets,  the  owner  or  person 
in  possession  of  it  will  not  be  criminally  liable,  unless  he  knows 
of  the  ferocity  of  the  particular  animal,  and  neglects  to  take 
proper  measures  to  prevent  risk  of  hurt  from  it.  Fierce  and 
dangerous  animals,  such  as  bears,  or  dogs  which  are  known  to 
bite  people,  must  be  kept  with  a  care  proportioned  to  the 
risk  of  keeping  them.  ^^  Danger  of  grievous  hurt''  is  here 
mentioned.  See  Section  320.  If  there  is  a  risk  which  falls 
short  of  danger  to  life  or  of  grievous  hurt,  such  as  the  risk  of 
being  slightly  bitten,  it  will  not  be  sufficient. 

290.  Whoever  commits  a  public  nuisance  in  any 

Punishment  for  pubUo  nui-      C^SC  UOt  OthcrwisC    punishablo 

■*''°®*  by  this  Code,  shall  be  punished 

with  fine  which  may  extend  to  two  hundred  Rupees. 


REPEATING   &C.   A  NUISANCE.  215 

See  Section  268  and  the  note  thereto.  Many  Sections  of  thia 
and  other  Chapters  provide  a  punishment  for  various  specific 
public  nuisances.  This  Section  punishes  any  public  nuisance 
coming  within  the  definition  given  by  Section  868,  and  not 
otherwise  expressly  punishable  under  the  Code. 

If  there  are  nuisances  which  do  not  fall  within  any  provision 
of  this  Code,  they  will  at  present  remain  punishable  under  any 
law  now  in  force  which  may  be  found  to  provide  a  penalty. 

A  man  may  be  guilty  of  a  nuisance  by  the  act  of  his  agent  or 
servant.  He  may  be  personally  ignorant  of  the  particular  act 
or  omission  which  causes  the  injury,  annoyance,  &c.,  and  may 
have  no  intention  to  cause  it.  But  if  those  whom  he  authorises 
to  manage  his  property,  acting  within  their  general  authority, 
occasion  a  public  nuisance  on  such  property,  he  must  answer 
criminally  for  it. 

According  to  the  definition  of  a  public  nuisance  '^  a  person 
ifl  guilty  of  a  public  nuisance  who  does,  &c.''  This  word 
'^  person''  is  explained  to  include  a  company  or  body  of  persons 
whether  incorporated  or  not  (Section  11).  It  would  therefore 
seem  that  a  company  of  persons, — as  a  Railway  Company,  or  a 
Gas  Company,  may  be  punished  under  this  Code  for  the  acts  or 
illegal  omissions  of  their  authorized  agents,-— if  a  public  nuisance 
is  caused  by  such  acts  or  omissions,  and  there  is  no  special  law 
which  is  applicable. 

It  seems  that  no  length  of  time  will  make  a  public  nuisance 
lawful,  or  exempt  those  who  create  or  continue  it  from  criminal 
liability.  A  person  who  continues  a  nuisance  created  by  another 
would  probably  be  held  to  come  within  the  word  "  whoever 
commits,  &c.''  If  the  owner  of  land  erects  a  building  which 
is  a  public  nuisance  and  lets  the  land,  he  might  probably  be  held 
criminally  liable  for  its  continuance  during  the  lease. 

291.    Whoever  repeats  or  continues  a  public  nui- 
ctentmuan-e  of  nuisanoe  af-     saucc,  having  bccu  enjoiucd  by 

»er  injunction  to  di«,ontinu6.      ^ny     public     SCrvaut   who  haS 

lawful  authority  to  issue  such  injunction  not  to  repeat 


216  CHAPTER  XIV. 

or  continue  such  nuisance,  shall  he  punished  with 
simple  imprisonment  for  a  term  which  may  extend 
to  six  months,  or  with  fine,  or  with  hoth. 

Probably  the  injanction  which  a  magistrate  was  aathorized  to 
give  under  the  Act  (XXI.  of  1841)  for  the  better  prevention  of 
local  naisances,  was  in  the  contemplation  of  the  legislature. 
That  Act  has  been  repealed ;  and  the  provisions  of  Chapter  XX. 
of  the  Code  of  Criminal  Procedure  substituted  for  it. 

The  three  Sections  which  follow,  relate  to  the  offence  of  sell- 
ing &c,j  indecent  books,  prints  &c.  and  singing  obscene  songs. 
The  offences  contemplated,  as  well  the  selling  or  importing  &c. 
for  sale,  as  the  wilfully  exhibiting  to  public  view  &c.,  are  offences 
against  public  decency.  And  the  proof  should  support  this,  by 
shewing  that  the  person  charged  had  in  contemplation  such  a 
public  offence.     See  note  to  Section  268. 

292.  Whoever  sells  or  distributes,  or  imports  or 
„  ,  .^       ^        ^    ,        prints  for  sale  or  hire,  or  wilful- 

Bale.^.  of  obscene  books.        t  i_*i.-i     j.  1.1  •        • 

ly  exhibits  to  puhhc  view,  any 
obscene  book,  pamphlet,  paper,  drawing,  painting, 
representation,  or  figure,  or  attempts  or  oflfers  so  to 
do,  shall  be  punished  with  imprisonment  of  either 
description,  for  a  term  which  may  extend  to  three 
months,  or  with  fine,  or  with  both. 

Exception.  This  Section  does  not  extend  to  any 
representation  sculptured,  engraved,  painted,  or  other- 
wise represented,  on  or  in  any  Temple,  or  on  any  car 
used  for  the  conveyance  of  idols,  or  kept  or  used  for 
any  religious  purpose. 

293.  Whoever  has  in  his  possession  any  such  oh- 
Having  in  possession  ob-    sccuc  book  or  Other  thinsT  as 

Boene  book  tor  sale  or  exhibi-       •  . .  1  •      1 1      1      .         ^     ■. 

tion.  IS  mentioned  m  the  last  preced- 

ing Section  for  the  purpose  of  sale,  distribution,  or 
public  exhibition,  shall  be  punished  with  imprison- 
ment of  either  description,  for  a  term  which  may 
extend  to  three  months,  or  with  fine,  or  with  both. 


OFFENCES  RELATING  TO  RELIGION,  217 

294.     Whoever  sings,  recites,  or  utters  in  or  near 
any  public  place  any  obscene 

Obscene  songs.  i.    n    j  j      x      xi. 

song,  ballaa,  or  words,  to  the 
annoyance  of  others,  shall  be  punished  with  imprison- 
ment of  either  description,  for  a  term  which  may  ex- 
tend to  three  months,  or  with  fine,  or  with  both* 


Chapter  XV. 
OF  OFFENCES  RELATING  TO  BELIGION- 


The  principle  on  which  this  Chapter  has  been  framed  is  this, 
— ^that  every  man  shonld  be  allowed  to  profess  his  own  reli- 
gion, and  that  no  man  should  be  suffered  to  insult  the  religion 
of  another. 

The  question  whether  insults  offered  to  religion  ought  to 
be  visited  with  punishment,  does  not  appear  at  all  to  depend 
on  the  question  whether  that  religion  be  true  or  false.  The 
religion  may  be  false^  but  the  pain  which  such  insults  give  to 
the  professors  of  that  religion  is  real.  It  is  often,  as  the  most 
superficial  observation  may  convince  us,  as  real  a  pain,  and  as 
acute  a  pain,  as  is  caused  by  almost  any  offence  against  the 
person,  against  property,  or  against  character.  Nor  is  there 
any  compensating  good  whatsoever  to  be  set  off  against  this 
pain.  Discussion,  indeed,  tends  to  elicit  truth.  But  insults 
have  no  such  tendency.  They  can  be  employed  just  as  easily 
against  the  purest  faith  as  against  the  most  monstrous  super* 
stition*  It  is  easier  to  argue  against  falsehood  than  against 
truth.  But  it  is  as  easy  to  pull  down  or  defile  the  temples  of 
truth  as  those  of  falsehood.  It  is  as  easy  to  molest  with  ribal- 
dry and  clamour,  men  assembled  for  purposes  of  pious  and 
rational  worship,  as  men  engaged  in  the  most  absurd  ceremo- 
nies. Such  insults,  when  directed  against  erroneous  opinionsj 
2    F 


218  CHAPTER   XV. 

seldom  have  any  other  effect  than  to  fix  those  opinions  deeper, 
and  to  give  a  character  of  peculiar  ferocity  to  theological 
dissension.  Instead  of  eliciting  truth  they  only  inflame 
fanaticism. 

295.  Whoever   destroys,  damages,  or  defiles  any 

place  of  worship,  or  any  ob- 

Injuring  or  defiling  a  plaoe       •j.-iiji  jV  i  t* 

of  worship  with  intent  to  in-  ICCt  held  SaCrcd  by  any  class  01 
suit  the  religion  of  any  olasB.      *'  -j.!.    i.i.       •    x      j.*         ^d 

persons  with  the  intention  of 
thereby  insulting  the  religion  of  any  class  of  persons, 
or  with  the  knowledge  that  any  class  of  persons  is 
likely  to  consider  such  destruction,  damage,  or  defile- 
ment as  an  insult  to  their  religion,  shall  be  punished 
with  imprisonment  of  either  description,  for  a  term 
which  may  extend  to  two  years,  or  with  fine,  or  with 
both. 

Some  act  of  intentional  destraction  or  damage  mnst  be 
proved.  If  the  charge  is,  the  intentional  defiling  of  a  place 
or  object  held  sacred  by  any  class  of  persons,  some  act  which 
is  considered  by  persons  of  that  class  to  defile,  shoold  be  proved : 
— as  the  slaughter  of  a  cow  in  a  place  deemed  sacred,  or  the 
pollution  by  any  means  of  a  mosque. 

The  intention  to  insult  religion  is  always  an  essential  part  of 
this  offence.  In  such  cases  as  those  just  referred  to,  there  will 
usually  be  little  doubt  respecting  the  intention;  But  if  the 
offence  charged  is  injury  or  damage  done  to  a  sacred  place  or 
object,  the  Court  should  be  satisfied  that  the  act  is  one,  not 
merely  of  thoughtlessness  or  mischief  (see  Section  425),  but  of 
intentional  insult  to  religion.  For  it  is  only  for  such  acts  that 
the  severe  punishment  provided  by  this  Section  is  intended. 

The  words  "  any  class  of  persons"  may  include  any  religious 
sect,  however  few  in  number.     See  Section  117. 

296.  Whoever  voluntarily  causes  disturbance  to 
Disturbing  a  reugious  as-    any  asscmbly  lawfully  engaged 

■®™^^y-  in  the  performance  of  religious 

worship  or  religious  ceremonies,  shall  be  punished  with 


OFFENCES   RELATING  TO  RELIGION,  219 

imprisonment  of  either  description,  for  a  term  which 
may  extend  to  one  year,  or  with  fine,  or  with  both. 

Assemblies  held  for  religious  worship,  or  for  the  performance 
of  religious  ceremonies,  are  protected  from  intentional  distur- 
bance by  this  provision. 

A  person  vohmtarily  causes  disturbance  when  he  causes  it 
by  means  intended  by  him  to  cause  it,  or  by  means  which  he 
knows  to  be  likely  to  cause  it  (see  Section  39). 

Many  of  the  great  Hindoo  festivals  at  Juggurnauth,  Allaha- 
bad, Hurdwar,  and  other  places,  where  thousands  of  Hindoos  are 
gathered  together  for  the  performance  of  religious  ceremonies, 
are  likewise  attended  by  other  persons  whose  object  it  is  to 
engage  the  worshippers  in  friendly  discussion  on  religious 
subjects.  Persons  thus  engaged  in  discussion  together,  or 
persons  who  listen  of  their  own  accord  to  the  argument,  commit 
no  ofiTence  within  this  or  within  any  other  penal  provision  of 
the  Code.  If  their  orderly  proceedings  are  interrupted  by  other 
persons  who  seek  to  produce  angry  discussion,  to  create  a  dis- 
turbance, and  to  break  up  the  congregation, — a  disturbance 
thus  created,  though  it  may  be  said  to  be  indirectly  occasioned 
by  the  original  discussion,  cannot  properly  be  deemed  to  be 
voluntarily  caused  by  the  promoters  of  such  discussion. 

The  assembly  must  be  lawfully  engaged  in  the  performance  of 
religious  worship.  The  place  of  assembly  may  be  unfit  or 
improper  for  the  purpose,  though  the  object  of  the  assembly 
may  be  lawful.  A  religious  assemblage  held  in  a  public  street 
or  thoroughfare,  so  as  to  cause  obstruction,  would  probably  not 
be  protected  by  the  provisions  of  this  Section  from  disturbance 
voluntarily  caused  by  passengers,  or  by  public  servants  in  the 
exercise  of  their  duties. 

297.    Whoever,  with  the  intention  of  wounding  the 

Trespassing  on  buriai-pia-    foelings  of  any  person,  or  of 

*^'*^-  insulting  the  religion  of  any 

person,  or  with  the  knowledge  that  the  feelings  of  any 

person  are  likely  to  be  wounded,  or  that  the  religion 

2  r  2 


220  CHAPTER  XV. 

of  any  person  is  likely  to  be  insulted  thereby,  commits 
any  trespass  in  any  place  of  worship  or  on  any  place 
of  sepulture  or  any  place  set  apart  for  the  performance 
of  funeral  rites  or  as  a  depository  for  the  remains  of 
the  dead,  or  offers  any  indignity  to  any  human  corpse, 
or  causes  disturbance  to  any  persons  assembled  for 
the  performance  of  funeral  ceremonies,  shall  be  pun- 
ished with  imprisonment  of  either  description,  for  a 
term  which  may  extend  to  one  year,  or  with  fine,  or 
with  both. 


Trespasses  in  places  of  worship^  and  insults  to  the  rites  of 
sepulture  and  the  remains  of  the  dead,  are  hereby  made 
punishable. 

'^  Criminal  trespass^'  is  an  offence  defined  and  made  punish- 
able (see  Sections  441  and  447) :  but  an  ordinary  act  of  trespass 
on  property  is  not  treated  as  an  offence. 

The  mere  act  of  trespassing  in  a  place  of  worship  or  a  burial 
place,  &c.,  is  punished,  when  the  trespasser  has  the  intention 
described  in  the  first  part  of  this  Section.  The  intention  to 
wound  the  feelings  or  religion,  not  of  a  class  of  persons  but  of 
a  single  individual,  suffices  to  make  the  act  of  trespass  an 
offence.  The  Court  should  be  satisfied  that  the  trespass  was 
committed,  or  the  indignity  offered,  knowingly,  and  vrith  this 
intention. 

An  act  which  is  done  vrith  the  knowledge  that  a  person  is 
likely  to  consider  that  act  as  an  insult  to  his  religion,  is  an  act 
by  which  *'  religion  is  likely  to  be  insulted'*  within  the  mean- 
ing of  this  Section. 

293.    Whoever,  with  the  deliberate  intention  of 
uttering  words.  Ac.,  with    wounding  the  reUgious   feel- 
f5??l£Srou?^3inS  o/S^    i^gs  of  any  person,  utters  any 
Jf*®'"^^  word  or  makes  any  sound  in 

the  hearing  of  that  person,  or  makes  any  gesture  in  the 
sight  of  that  person,  or  places  any  object  in  the  sight 
of  that  person,  shall  be  punished  with  imprisonment 


OFFENCES  AFFECTING  THE   HUMAN   BODY.        221 

of  either  description,  for  a  term  which  may  extend  to 
one  year,  or  with  fine,  or  with  both. 

The  Law  Commissioners  thus  describe  the  object  of  this  provi- 
sion : — "  In  framing  this  Clause  we  had  two  objects  in  view.  We 
wish  to  allow  all  fair  latitude  to  religious  discussion^  and  at  the 
same  time  to  prevent  the  professors  of  any  religion  from  offering 
under  the  pretext  of  such  discussion^  intentional  insults  to 
what  is  held  sacred  by  others.  We  do  not  conceive  that  any 
person  can  be  justified  in  wounding  with  deliberate  intention 
the  religious  feelings  of  his  neighbours  by  words,  gestures,  or 
exhibitions.  A  warm  expression  dropped  in  the  heat  of  con- 
troversy, or  an  argument  urged  by  a  person,  not  for  the  pur- 
pose of  insulting  and  annoying  the  professors  of  a  different 
creed,  but  in  good  faith  for  the  purpose  of  vindicating  his  own, 
will  not  fall  under  the  definition  contained  in  this  Clause.'^ 

The  speech  or  gesture,  &c.,  which  is  punishable  as  an  of- 
fence by  this  Section,  must  be  advisedly  and  deliberately  in- 
tended to  wound  the  religious  feelings  of  some  person. 


Chaptee  XVI. 

OF  OITENCES  AFFECTING  THE  HUMAN 

BODY. 


It  is  to  be  borne  in  mind  that  the  definitions,  penal  pro-* 
visions,  and  illustrations  of  this  Chapter  (as  of  all  the  other 
Chapters)  of  the  Code,  must  be  understood  subject  to  the 
General  Exceptions  contained  in  the  4th  Chapter.  Many 
things  which  cause  death  or  hurt,  or  otherwise  affect  injuriously 
the  human  body,  are  by  virtue  of  those  Exceptions,  exempt 
from  punishment^  and  therefore  are  not  offences  within  the 
Code. 


222  CHAPTER   XVI. 

Of  OflFences  affecting  Life, 

The  first  portion  of  the  Chapter  of  offences  against  the  body, 
consists  of  those  offences  which  affect  human  life.  As  this  is 
the  most  important  division  of  the  Chapter,  the  attention  of  the 
reader  must  be  especially  given  to  those  General  Exceptions 
which  shew  when  the  causing  of  the  death  of  a  human  being  is 
not  an  offence.  Homicides,  which  in  their  circumstances  can  be 
brought  within  any  one  of  the  General  Exceptions,  cannot,  it  is 
needless  to  state,  be  deemed  culpable  homicides  within  the  defi- 
nition given  in  Section  1  of  the  present  Chapter. 

Those  homicides  which  are  not  culpable,  and  therefore  not 
offences,  may  be  generally  described  as  being  (1)  Accidental,  or 
(2)  Justifiable. 

1 .  Accidental  homicide  is,  where  death  is  caused  by  accident 
or  misfortune  without  any  criminal  intention  or  knowledge  by 
one  who  does  a  lawful  act  in  a  lawful  manner  and  with  proper 
care  and  caution.     See  Section  80  ante,  and  the  note  thereto. 

There  may  sometimes  be  great  difficulty  in  giving  any  legal 
certainty  to  such  vague  terms  as  "  accident,"  "  proper  care  and 
caution,"  and  others  which  occur  in  this  General  Exception. 
But  it  is  nevertheless  the  duty  of  the  Court  to  ascertain  in 
each  case  after  a  careful  consideration  of  the  facts,  what  is  their 
true  meaning  as  applied  to  those  facts. 

Suppose  A  and  Z  engage  in  some  game  or  sport  together, 
in  the  course  of  which  A  unintentionally  causes  Z^s  death.  If  the 
sport  is  not  dangerous,  and  is  likely  to  cause  no  harm  or  only  very 
slight  harm  (see  Section  95),  A  has  committed  no  offence.  But, 
if  the  sport  is  a  very  dangerous  one,  carried  on  roughly  and 
carelessly,— or  if  ill-will  to  the  deceased  person  is  proved,  or 
unfair  play,  or  some  undue  advantage  taken  in  the  course  even 
of  a  harmless  pastime, — the  Court  will  probably  conclude  that 
A,  having  caused  Z's  death  in  a  cruel  or  unusual  manner,  has 
committed  either  the  offence  of  culpable  homicide  or  some 
other  offence.     See  Section  87. 

Again  suppose  a  parent  whips  his  child  and  death  follows 
the  whipping.  The  Court,  having  ascertained  satisfactorily  that 


JUSTIFIABLE    HOMICIDE.;.  223 

the  pnnishment  was  not  of  a  cruel  or  unasnal  kind,  bat  was 
only  such  moderate  chastisement  as  the  law  allows  to  a  parent 
for  his  child^s  benefit,  would  doubtless  decide  that  the  death 
of  the  child  was  caused  by  accident  or  misfortune,  and  that  the 
father  had  committed  no  oflFence.     See  Section  89. 

In  these  and  similar  instances  it  is  the  duty  of  the  Court 
first  to  ascertain,  and  then  to  apply,  the  rule  of  law  which  is 
applicable.  It  must  determine  the  extent  of  the  power  of  a  pa- 
rent over  his  child, — the  lawfulness  of  a  particular  act  or  game, 
or  of  the  manner  in  which  it  is  performed  or  played, — ^what  de- 
gree of  caution  the  law  requires  in  the  particular  case  under 
consideration,  Ac.  If  A  causes  B's  death  unintentionally  by 
shooting  him  with  a  gun  which  A  did  not  know  to  be  loaded, 
and  the  question  arises  whether  this  homicide  is  accidental  or 
culpable, — ^A  if  he  proved  that  he  had  reasonable  grounds  to 
suppose  that  the  gun  was  not  loaded  (as  if  he  had  himself  dis- 
charged it  an  hour  before  and  put  it  in  a  place  of  safe  custody 
where  he  again  found  it),  would  probably  be  deemed  to  have 
acted  with  proper  care  and  caution.  The  utmost  caution  that 
can  be  used  is  not  requisite, — but  only  that  reasonable  caution 
which  is  usual  and  ordinary  in  like  cases. 

2.  Justifiahle  homicide  is  where  the  taking  away  of  life  is 
justified  because  it  is  taken  by  a  judicial  act,  or  in  pursuance 
of  a  judicial  sentence  pronounced  by  some  Court  or  Judge,— 
or  because  it  is  taken  in  the  exercise  of  a  power  given,  or  sup- 
posed in  good  faith  to  be  given,  by  law. 

The  execution  of  a  person  who  has  been  duly  convicted  of 
murder  and  sentenced  to  be  punished  with  death,  is  an  obvious 
instance  of  death  warranted  by  the  sentence  of  a  Court  of  Jus- 
tice and  therefore  justified. 

The  execution  of  a  criminal  in  pursuance  of  the  judgment  of 
a  Court,  even  though  the  Court  had  not  jurisdiction  to  pass  the 
judgment,  if  the  executioner  in  good  faith  believed  that  the 
Court  had  such  jurisdiction,  is  also  an  instance  of  justifiable 
homicide.  And  not  only  is  the  executioner  justified  in  such  a 
case  but  the  Court  or  Judge  passing  judgment  in  the  exercise  of 


224  CHAPTER  XTI. 

some  authority  which  they  believe  in  good  faith  to  be  conferred 
by  law,  are  equally  justified. 

Where  life  is  taken  in  the  exercise  of  a  power  given  to  a 
person  by  law,  without  any  judicial  act  or  order,  the  homicide 
is  equally  justifiable.  Thus  in  the  exercise  of  the  right  of 
private  defence  the  causing  of  death  is,  in  many  cases,  justifiable. 
See  Chapter  IV.  Sections  96—106, 

It  is  also  justifiable,  where  a  person  in  good  faith  believes 
himself  bound  by  law  to  do  an  act  which  causes  death.  For 
instance  the  soldier  who  fires  on  a  mob  by  the  order  of  his 
fiuperior  officer,  and  thus  causes  the  death  of  an  innocent  person, 
is  justified.  And  it  may  be,  under  peculiar  circumstances,  that 
an  officer  of  justice  in  hot  pursuit  of  a  criminal,  whom  he  has 
authority  to  arrest,  would  be  held  justified  for  an  act  intended 
only  to  stop  the  flight,  but  which  may  have  caused,  and  been 
likely  to  cause,  the  fugitive's  death. 

It  is  also  justifiable  in  certain  cases  to  cause  a  person's 
death  for  the  purpose  of  avoiding  or  preventing  further  loss  of 
life.     See  Section  81. 

Of  some  of  these  kinds  of  justifiable  homicide,it  may  be  observ- 
ed that  the  conduct  of  both  the  slayer  and  the  person  slain  in 
each  case  requires  the  most  careful  examination.  The  justifica- 
tion of  the  taking  away  of  human  life  by  private  persons,  ought 
to  be  confined  strictly  within  those  limits  which  are  compatible 
with  the  instincts  of  nature,  the  security  of  society,  and  the 
due  administration  of  public  justice. 


Culpable  homicide  being  that  kind  of  homicide  which  is  an 
offence  under  the  Penal  Code,  is  thus  defined  :— 


299.    Whoever  causes  death  by  doing  an  act  with 
the  intention  of  causing  death. 
Culpable  homicide.  ^^  ^^h  the  intention  of  caus- 

ing such  bodily  injury  as  is  likely  to  cause  death,  or 
with  the  knowledge  that  he  is  likely  by  such  act  to 


CULPABLE    HOMICIDE.  225 

cause  death,  commits  the  oflfence  of  culpable  homi- 
cide.* 

*  In  the  Code  as  origmaUy  iramed  the  definition  nms  thus !  **  Whoever  deed 
any  aoi  or  omits  what  his  is  UgaU/y  howid  to  do  with  the  intention  &o,"  The  same 
words,  or  other  words  tantamoant  in  effect,  frequently  reour  in  snbseqaent  Sections 
of  the  Chapter  of  Offences  affecting  the  human  body,  and  elsewhcore  throughout 
the  Penal  Code. 

In  the  Code  as  now  enacted,  it  frequently  happens  that  no  words  are  used  to 
denote  acts  of  illegal  omission ;  but  by  a  Genm:^  Explanation  it  is  explained 
that  **  in  erery  i»rt  of  this  Code,  except  where  a  contraiy  intention  appears 
from  the  context,  words  which  refer  to  acts  done  extend  also  to  illegal  omis- 
sion :"  (Sec.  32). 

The  Law  Commissioners  in  a  note  appended  to  the  corresponding  Chapter  of 
the  (»iginal  Code  say, "  We  think  this  the  most  convenient  place  for  explaining  the 
reason  which  has  led  us  so  often  to  employ  them  (that  is  the  words  "  omits  what 
he  is  legally  bound  &o.")  For  if  that  reason  shall  appear  to  be  sufficient  in  cases 
in  which  human  life  is  concerned,  it  wHl  d  fortiori  be  sufficient  in  other  cases. 

«  Early  ill  the  progress  of  the  Code  it  became  necessary  for  us  to  consider  the 
following  question :  when  acts  are  made  punishable  on  the  ground  that  those  acts 
produce,  or  are  intended  to  produce,  or  are  known  to  be  liable  to  produce  certain 
evil  effects,  to  what  extent  ought  omissions  which  produce,  which  cure  intended 
to  produce,  or  which  are  known  to  be  likely  to  produce  the  same  evil  effects  to 
be  made  punishable  ? 

**  Two  things  we  take  to  be  evident ;  first,  that  some  of  these  omissions  ought  to 
be  punished  in  exactly  the  same  manner  in  which  acts  are  punished ;  secondly, 
that  all  these  omissions  ought  not  to  be  punished.  It  will  hardly  be  disputed 
that  a  gaoler  who  voluntarily  causes  the  death  of  a  prisoner  by  omitting  to  sup- 
ply that  prisoner  with  food,  or  a  nurse  who  voluntarily  causes  the  death  of  an 
infiuit  entrusted  to  her  care  by  omitting  to  take  it  out  of  a  tub  of  water  into 
which  it  has  fallen,  ought  to  be  treated  as  guilty  of  murder.  On  the  other  hand, 
it  will  hardly  be  maintained  that  a  man  should  be  punished  as  a  murderer  because 
he  emitted  to  relieve  a  beggar,  even  though  there  might  be  the  dearest  proof 
that  the  death  of  the  beggar  was  the  effect  of  this  omission,  and  that  the  man  who 
omitted  to  give  the  alms  knew  that  the  death  of  the  beggar  was  likely  to  be  the 
effect  of  the  omission.  It  will  hardly  be  maintained  that  a  surgeon  ought  to  be 
treated  as  a  mmrderer  for  refusing  to  go  from  Calcutta  to  Meerut  to  p^form  an 
operation,  although  it  should  be  absolutely  certain  that  this  surgeon  was  the  only 
person  in  India  who  could  perform  it,  and  that  if  it  were  not  performed  the  per- 
son who  required  it,  would  die.  It  is  difficult  to  say  whether  a  Penal  Code  which 
should  put  no  omissions  on  the  same  footing  with  acts,  or  a  Penal  Code  which 
should  put  all  omissions  on  the  same  footing  with  acts,  would  produce  conse- 
quences more  absurd  and  revolting.  There  is  no  country  in  which  either  of  these 
principles  is  adopted.  Indeed,  it  is  hard  to  conceive  how,  if  either  were  adopted, 
society  could  be  held  together. 

« It  is  plain,  therefore,  that  a  middle  course  must  be  taken.  But  it  is  not  easy 
to  determine  what  that  middle  course  ought  to  be.  The  absurdity  of  the  two 
exla^emes  is  obvious,  fiut  there  are  innumerable  intermediate  points ;  and  wher- 
ever the  line  of  demarcation  may  be  drawn  it  will,  we  fear,  include  some  cases 
which  we  might  wish  to  Qxempt»  and  will  exempt  some  which  we  might  wish  to 
include." 

The  Commissioners  then  'propoae  the  rule  which  the  Code  adopts  for  the  pimish- 
ment  of  acts  of  omission  (see  Section  82)  and  proceed  thus — "  We  cannot  defend 
this  rule  better  than  by  giving  a  few  illustrations  of  the  way  in  which  it  will 
operate.  A  omits  to  give  Tt  fo(3,  and  by  that  omission  voluntarily  causes  Z's 
death.  Is  this  murder  ?  Under  our  rule  it  is  murder  if  A  was  Z's  gaoler,  direct- 
ed by  the  law  to  furnish  Z  with  food.  It  is  murder  if  Z  was  the  mfiemt  child  of 
A,  and  had  theroforo  a  legal  right  to  sustenance,  which  right  a  civil  Court  would 

2    G 


226  CHTAPTER  XVI. 

Illustrations, 

(a)  A  lays  sticks  and  turf  over  a  pit,  with  the  intention  of  therehy 
causing  death,  or  with  the  knowledge  that   death  is  likely  to  he 

enforce  against  A.  It  is  murder  if  Z  was  a  bed-ridden  invalid  and  A  a  nurse 
hired  to  feed  Z. 

"  It  is  not  murder  if  Z  is  a  beggar  who  has  no  other  claim  on  A  than  that  of 
humanily. 

"  A  omits  to  tell  Z  that  a  rirer  is  swollen  so  high  that  Z  cannot  safely  attempt 
to  ford  it,  and  hj  this  omission  voluntarily  causes  Z's  death.  This  is  murder, 
if  A  is  a  peon  stationed  by  authority  to  warn  travellers  from  attempting  to  ford 
the  river.  It  is  murder  if  A  is  a  g^de  who  had  contracted  to  conduct  Z.  It  is 
not  murder  if  A  is  a  person  on  whom  Z  has  no  other  claim  than  that  of  humanity. 
A  savage  dog  fastens  on  Z.  A  omits  to  call  off  the  dog,  knowing  that  if  the  dog 
be  not  called  off  it  is  likely  that  Z  will  be  killed.  Z  is  killed.  This  is  murder 
in  A,  if  the  dog  belonged  to  A,  inasmuch  as  his  omission  to  take  proper  order 
with  the  dog  is  illegal.     But  if  A  be  a  mere  passer-by  it  is  not  murder. 

"  We  are  sensible  that  in  some  of  the  cases  which  we  have  put  our  rule  may 
appear  too  lenient.  But  we  do  not  think  that  it  can  be  made  more  tevere,  with- 
out disturbing  the  whole  order  of  society.  It  is  true  that  the  man  who,  having 
abundance  of  wealth,  suffers  a  fellow  creature  to  die  of  hunger  at  his  feet,  is  a 
bad  man,  a  worse  man,  probably,  than  many  of  those  for  whom  we  have  provided 
very  severe  punishment.  But  we  are  unable  to  see  where,  if  we  make  such  a 
man  l^^y  punishable,  we  can  draw  the  line.  If  the  rich  man  who  reftises  to 
save  a  beg^^s  life  at  the  cost  of  a  little  copper  is  a  murderer,  is  the  poor  man 
just  one  degree  above  beggary  also  to  be  a  murderer  if  he  omits  to  invite  the 
beggar  to  partake  of  his  hard-earned  rice  ?  Again  :  if  the  rich  man  is  a  murderer 
for  refusing  to  save  the  beggar's  life  at  the  cost  of  a  little  copper,  is  he  also  to  be 
a  murderer  if  he  reftises  to  save  the  beggar's  life  at  the  cost  of  a  thousand  rupees  ? 
Suppose  A  to  be  ftdly  convinced  that  nothing  can  save  Z's  life,  unless  Z  leave 
Bengal  and  reside  a  year  at  the  Gape,  is  A,  however  wealthy  he  may  be,  to  be 
punished  as  a  murderer  beoause  he  will  not,  at  his  own  expense,  send  Z  to  the 
Gape  ?  Surely  not.  Yet  it  will  be  difficult  to  say  on  what  principle  we  can  punish 
A  for  not  spending  an  anna  to  save  Z's  life,  and  leave  him  unpunished  for  not 
spending  a  thousand  rupees  to  save  Z's  life.  The  distinction  between  a  legal 
and  an  iUegal  omission  is  perfectly  plain  and  intelligible.  But  the  distinction 
between  a  large  and  a  small  sum  of  money  is  very  far  from  being  so ;  not  to  say 
that  a  sum  wldch  is  small  to  one  man  is  large  to  another. 

"  The  same  ar^gument  holds  good  in  the  case  of  the  ford.  It  is  true  that  none 
but  a  veiy  depraved  man  would  suffer  another  to  be  drowned  when  he  might 
prevent  it  by  a  word.  But  if  we  punish  such  a  man,  where  are  we  to  stop  ? 
How  much  exertion  are  we  to  require  ?  Is  a  person  to  be  a  murderer  if  he  does 
not  go  fifty  yards  through  the  sun  of  "Bengal  at  noon  in  May  in  order  to  caution 
a  traveller  against  a  swollen  river  ?  Is  he  to  be  a  murderer  if  he  does  not  go  a 
hundred  yards  ?  if  he  does  not  go  a  mile  P  if  he  does  not  go  ten  P  What  is  the 
precise  amount  of  trouble  and  inconvenience  which  he  is  to  endure  P  The  distinc- 
tion between  the  guide  who  is  bound  to  conduct  the  traveller  as  safely  as  he  can, 
and  a  mere  stranger,  is  a  dear  distinction.  But  the  distinction  between  a  stran- 
ge who  will  not  give  a  haUoo  to  save  a  man's  life  and  a  stranger  who  will  not 
run  a  mile  to  save  a  man's  life  is  very  far  from  being  equally  clear. 

*<  It  is,  indeed,  most  highly  desirable  that  men  should  not  merely  abstain  from 
doing  harm  to  their  neighbours,  but  should  render  active  services  to  their 
neighbours.  In  general  however  the  Penal  law  must  content  itself  with  ke^nng 
men  from  doing  positive  harm,  and  must  leave  to  public  opinion,  and  to  the 
teachers  of  morality  and  religion,  the  ofl^ce  of  furnishing  men  with  motives  for 
doing  positive  good.  It  is  evident  that  to  attempt  to  punish  men  by  law  for  not 
rendering  to  others  all  the  service  which  it  is  their  duty  to  render  to  others^ 
would  be  preposterous.    We  must  gprant  impunity  to  the  vast  nujority  of  those 


CULPABLE   HOMICIDE.  227 

thereby  caused.  Z,  believing  the  ground  to  be  firm,  treads  on  it,  falls 
in,  and  is  killed.  A  has  committed  the  offence  of  culpable  homi- 
cide. 

(b)  A  knows  Z  to  be  behind  a  btish.  B  does  not  know  it.  A,  in-^ 
tending  to  cause,  or  knowing  it  to  be  likely  to  cause  Z*s  death,  in- 
duces B  to  fire  at  the  bush.  B  fires  and  kills  Z.  Here  B  may  be 
guilty  of  no  offence ;  but  A  has  conunitted  the  offence  of  culpable 
homicide. 

(e)  A,  by  shooting  at  a  fowl  with  intent  to  kill  and  steal  it,  kills 
B,  who  is  behind  a  bush,  A  not  knowing  that  he  was  there.  Here, 
although  A  was  doing  an  unlawful  act,  he  was  not  guilty  of  culpable 
homicide,  as  he  did  not  intend  to  kill  B,  or  cause  death  by  doing  an 
act  that  he  knew  was  likely  to  cause  death. 

The  1st  and  2nd  Explanations  appended  to  this  Section  lay 
down  rales  for  the  guidance  of  the  Courts  in  determining 
certain  cases  in  which  the  act  causing  death  operates  not  alone 
bat  with  other  causes  which  contribute  to  bring  about  that 
result. 

Explcmatwii  1.  A  person  who  causes  bodily  injury 
to  anothOT  who  is  labouring  under  a  disorder,  disease, 
or  bodily  infirmity,  and  thereby  accelerates  the  death 
of  that  other,  shall  be  deemed  to  have  caused  his  death. 

An  offence  affecting  the  life  of  a  person  who  must  soon  die, 
either  from  a  mortal  disease  or  in  the  coarse  of  nature  from 
old  age  and  decay,  is  not  a  less  offence  than  one  which  affects 
the  life  of  a  person  in  strong  health.  The  offender  causes  death 
in  the  one  case  by  accelerating  that  event  by  a  few  months  or 
days  or  hours ;  in  the  other  case,  possibly  he  hastens  the  event 
by  many  years.  The  real  difference  between  the  two  cases 
is  not  in  point  of  law,  but  in  respect  of  the  degree  of  proof 
requisite  to  show  the  cause  of  death.     For  where  the  death 


omissions  which  a  benevolent  morality  wonld  pranonnce  reprehensible,  and  most 
content  om^ves  with  punishing  sach  onnssions  only  when  they  are  distingnish- 
ed  from,  the  rest  by  some  circnmstance  which  marks  them  ont  as  peculiarly  fit 
oljeots  of  penal  legislation.  Now,  no  circnmstance  appears  to  ns  so  well  fitted 
to  be  the  mark  as  the  oiromnstanoe  which  we  have  selected.  It  will  generallj  be 
foond  in  the  most  atrodoos  cases  of  omission :  it  will  scarcely  ever  be  found  in  a 
venial  case  of  omission :  and  it  is  more  clear  and  certain  than  any  other  mark 
that  has  occurred  to  us.  That  there  are  objections  to  the  line  which  we  propose 
to  draw,  we  have  admitted.  But  there  are  objections  to  every  line  which  can  be 
drawn,  and  some  line  must  be  drawn." 

2  G  2 


228  CHAPTER  XVI. 

of  a  person  who  receives  some  bodily  injury  while  labonring 
under  a  disease  is  the  subject  of  inquiry^  the  Court  in  estimate 
ing  the  evidence  must  consider  whether  it  is  sufficiently  proved 
which  of  the  two  causes^  tho  disease  or  the  bodily  injury  to 
the  diseased  person  is  the  cause  of  his  dying  on  the  day 
when  his  death  occurs.  It  is  not  necessary  (if  it  were  possible) 
that  the  evidence  should  enable  the  Court  to  apportion  the 
two  causes  and  the  degree  in  which  each  of  them  contributes 
to  the  result.  But  the  Court  must  be  satisfied  (1)  that  the 
death  at  the  time  when  it  occurs  is  not  caused  solely  by  the 
disease ;  and  (2)  that  it  is  caused  by  the  bodily  injury  to  this 
extent,  that  it  is  accelerated  by  such  injury.  Suppose  A  is  ill 
of  small-pox,  and  Z  gives  him  pills  in  such  doses  that  the 
disease  is  aggravated  and  death  is  accelerated.  Z  has  caused 
death,  notwithstanding  that  it  may  be  proved  that  A  must 
have  eventually  died  of  the  small-pox. 

Explcmation  2.  Where  death  is  caused  by  bodily 
injury,  the  person  who  causes  such  bodily  injury  shall 
be  deemed  to  have  caused  the  death,  although  by 
resorting  to  proper  remedies  and  skilful  treatment  the 
death  might  have  been  prevented. 

In  the  case  supposed,  of  a  bodily  injury  which  when  it  is  in- 
flicted is  the  sole  cause  of  death  in  operation,  it  is  explained  that 
although  proof  be  given  that  the  wound  or  other  bodily  injury 
if  skilfully  treated  might  not  have  resulted  in  death,  yet  if  in 
fact  death  is  the  result,  the  wound  causes  death.  And  it  does 
not  avail  the  offender  to  prove  that  the  first  cause  might  have 
been  removed  or  rendered  inoperative  by  the  application  of  pro- 
per remedies,  and  that  death  might  thus  have  been  prevented. 

"  Proper  remedies  and  skilful  treatment'*  may  not  be  within 
the  reach  of  the  wounded  man ;  or,  if  they  are  at  hand  he  may  be 
unable  or  unwilling  to  resort  to  them.  But  this  is  immaterial 
so  far  as  relates  to  the  due  interpretation  of  the  words  ''  cause 
of  death/'  The  primary  cause  which  sets  in  motion  some  other 
cause, — as  the  severe  wound  which  induces  gangrene  or  fever. 


CULPABLE   HOMICIDE.  229 

—and  the  ultimate  effect^  deaths  are  snfBciently  connected  as 
canse  and  effect^  notwithstanding  that  the  supervening  sick- 
ness  or  disease  might  have  been  cured  by  medical  skill.  All 
that  it  is  essential  to  establish  is^  that  the  death  has  been  caused 
by  the  bodily  injury,  and,  if  there  be  any  intervening  cause,  that 
it  is  connected  with  a  sufficient  degree  of  probability  with  the 
primary  one. 

Cases  not  reached  by  either  of  the  above  Explanations  may 
occur,  in  which  there  will  be  some  perplexity  in  determining  the 
cause  of  death.  Suppose  a  person  who  has  received  some  slight 
wound  or  hurt  resorts  not  to  ^'  proper  remedies  and  skilful  treat- 
ment,^^ but  to  some  ignorant  and  unskiUed  adviser ;  and  that, 
in  consequence,  the  bodily  injury  is  aggravated  by  the  appUca- 
tion  of  unwholesome  salves,  and  death  ensues  :— or  suppose  he 
drinks  spirits  immoderately  in  a  hot  climate  :-*or  suppose  heia 
carried  to  a  hospital  where  erysipelas  happens  at  the  time  to 
be  prevalent,  and  catches  the  disorder  and  dies  of  it : — or  again 
suppose  the  bodily  injury  renders  the  amputation  of  a  limb 
necessary,  and  that  the  patient  is  soon  afterwards  attacked  by 
some  complaint  innocuous  to  a  person  in  sound  health,  but  which 
proves  fatal  to  him  in  his  weakly  condition.  In  all  these  cases, 
if  no  bodily  injury  had  been  received,  the  man  would  not  have 
died ;  and  it  may  therefore  be  said  that  the  injury  is  in  some 
sense  the  cause  of  death.  But  it  seems  indispensable  that 
the  death  should  be  connected  with  the  act.or  violence  or  other 
primary  cause,  not  merely  by  a  chain  of  causes  and  effects,  but 
by  such  direct  influence  as  is  calculated  to  produce  the  effect 
without  the  intervention  of  any  considerable  change  of  circum- 
stances. 

In  each  of  the  instances  we  have  last  supposed,  the  bodily 
injury  caused  death  under  extraordinary  circumstances*  Its 
direct  influence  in  produciug  that  result  was  small,  and  the  in- 
tervening circumstances  which  more  immediately  caused  death 
could  scarcely  have  been  foreseen.  Nevertheless  the  use  of  the 
words   "to  cause  death''  without  qualification  or  exception. 


230  CHAPTBR  XVI, 

brings  sach  cases  within  this  term  of  the  definition  of  the  offence 
of  culpable  homicide.  The  difference  between  these  cases  and 
others  of  less  complexity  is  (as  has  before  been  observed)  a 
matter  to  be  considered  by  the  Court  in  estimating  the  effect  of 
the  evidence.  Bat  it  is  difficult  to  conceive  any  evidence  suf- 
ficient to  establish  an  intention  to  cause  death  on  the  part  of  a 
person  who  inflicts  a  bodily  injury  which  ends  so  unexpectedly 
in  death. 

It  is  the  duty  of  the  Court  in  every  case  of  homicide  carefully 
to  investigate  each  link  in  the  chain  of  causes  which  result  in 
death.  When  the  investigation  has  made  clear  the  connexion 
between  the  first  wrongful  act  of  violence,  &c.  and  the  death,  as 
cause  and  effect,  there  will  still  remain  the  all  important  inquiry 
concerning  the  criminal  intention  or  knowledge  of  the  accused 
person. 

"  With  the  intention  of  causing  death  or  with  the  knowledge,*' 
&c.  The  most  important  consideration  upon  a  trial  for  this 
offence  is  the  intention  or  knowledge  with  which  the  act  which 
caused  death,  was  done.  The  intention  to  cause  death  or  the 
knowledge  that  death  will  probably  be  caused,  is  essential 
and  is  that  to  which  the  law  principally  looks,  ^nd  it  is  of  the 
utmost  importance  that  those  who  may  be  entrusted  with 
judicial  powers  should  clearly  understand  that  no  conviction 
ought  to  take  place,  unless  such  intention  or  knowledge  can 
firom  the  evidence  be  concluded  to  have  really  existed. 

The  existence  of  a  particular  evil  motive  such  as  hatred, 
avarice,  jealousy,  &c.,  is  not  necessary.  It  is  no  part  of  the 
definition  of  Culpable  Homicide  that  the  act  which  causes 
death  should  be  a  malicious  act.  Malice  is  not  made  a  neces- 
sary ingredient.  Whatever  may  be  the  motive  which  incites 
the  action,  and  whether  or  not  any  motive  whatsoever  be  dis- 
coverable, the  question  for  investigation  is  this : — did  theaccnsed 
person  intend  to  cause  death,  or  a  bodily  injury  likely  to  end 
in  death  ;  or  did  he  know  that  death  was  a  probable  result  of 
his  act?     If  such  was  his  purpose  and  design,  or  such  his 


CULPABLE   HOMICIDE.  231 

knowledge^ — and  none  of  the  General  Exceptions  of  this  Code 
are  applicable^ — the  act  is  an  offence  within  this  definition^ 
although  there  is  no  apparent  motive  for  it.  If  this  intention 
or  knowledge  is  clearly  shewn^  it  is  needless  to  enquire  into 
the  motives.  It  must  not^  however^  be  forgotten  that  mider 
certain  circumstances  the  existence  of  a  motive  may  become  an 
important  element  in  a  chain  of  presumptive  evidence^  as  tend- 
ing to  show  the  intention  of  the  accused  person. 

It  may  be  asked  with  reference  to  the  portions  of  the  definition 
which  have  been  last  noticed^  how  can  the  existence  of  the  re- 
quisite intention  or  knowledge  be  proved^  seeing  that  these  are 
internal  and  invisible  acts  of  the  mind  ?  They  can  be  ascertain- 
ed only  firom  external  and  visible  acts.  Observation  and  experi- 
ence enable  us  to  judge  of  the  connection  between  men's 
conduct  and  their  intentions.  We  know  that  a  sane  man  does 
not  usually  commit  certain  acts  heedlessly  or  unintentionally— 
and  generally  we  have  no  difficulty  in  inferring  from  his  conduct 
what  was  his  real  intention  upon  any  given  occasion. 

The  word  ''  death''  which  has  been  previously  explained  to 
mean  the  death  of  a  human  being  (Section  46)^  is  further 
here  explained^  not  to  include  as  it  is  used  in  the  definition  of 
Culpable  Homicide  the  death  of  an  unborn  child.  So  that  to 
cause  the  death  of  a  living  child  in  the  mother's  womb  is  not 
to  "  cause  death"  within  the  terms  of  Section  299.  According 
to  the  third  explanation— 

Explcmation  3.  The  causing  of  the  death  of  a  child 
in  the  mother^s  womb  is  not  jiomicide.  But  it  may 
amount  to  culpable  homicide  to  cause  the  death  of  a 
living  child,  if  any  part  of  that  child  has  been  brought 
forth,  though  the  child  may  not  have  breathed  or  been 
completely  bom. 

The  life  of  the  child  while  it  remains  wholly  within  the 
womb,  is  a  part  of  the  mother's  life,  and  not  a  separate  and 
distinct  existence.  But  as  soon  as  any  part  of  the  child  (sup- 
posing that  it  is  not  a  child  already  without  life,  a  dead 


232  CHAPTER  XVI. 

foetus)  has  been  brought  forth  from  the  womb,  the  child  is 
accounted  a  living  human  being,  to  cause  whose  death  may  be 
culpable  homicide. 

It  is  further  explained  that  this  may  be  so,  though  the  child 
may  not  have  breathed.  The  mere  fact  of  having  breathed  is  a 
very  uncertain  indication  of  life  in  such  cases,  for  it  is  well 
known  that  many  children  are  wholly  brought  forth  and  even- 
tually live,  and  yet  do  not  breathe  for  some  time  after  their  birth. 

It  may  be  said  that  a  child  is  not  completely  bom  until  after 
the  umbilical  cord  has  been  severed,  notwithstanding  that  the 
mother  has  been  completely  delivered,  and  that  the  child  is  in 
existence.  But  it  is  obvious  that  to  cause  the  death  of  such  a 
child,  ought  to  be  deemed  an  offence  of  the  same  nature,  as  the 
causing  of  the  death  of  a  child  one  month,  one  year,  or  ten 
years  old.  The  explanation  expressly  states  that  complete 
birth  is  not  requisite.  Instead  of  an  uncertain  period  which 
it  would  be  difficult  to  define  satisfactorily,  and  which  would, 
in  many  cases  of  infanticide  greatly  add  to  the  difficulty  of 
proof,  a  definite  and  readily  ascertained  point  of  time  (that 
is,  the  time  when  any  part  of  the  child  is  brought  forth)  is 
fixed,  to  denote  when  the  child  may  become  a  subject  of  cul« 
pable  homicide. 

If  no  part  of  the  child  has  been  brought  forth,  any  bodily 
injury  which  it  receives,  however  criminal,  does  not  constitute 
an  offence  under  this  Section ;  though  it  may  be  an  offence 
under  subsequent  provisions  of  the  Chapter  (see  Sections  315 
and  316 — and  this,  whether  such  injury  prevents  the  child  from 
being  bom  alive,  or  causes  the  death  of  the  child  afterwards. 
If  any  part  of  the  child  has  been  Drought  forth,  the  causing  of 
its  death  may  amount  to  culpable  homicide — not  because  the 
child  in  this  state  has  necessarily  and  in  all  cases  a  more  in- 
dependent existence  than  while  it  is  wholly  unborn,  or  because 
it  is  now  more  likely  to  live  than  before  (for  the  part  first 
brought  forth  may  be  such  as  to  put  the  child's  life  in  great 
peril) — ^but,  as  we  have  already  seen,  because  this  is  a  definite 
period  of  time. 


CULPABLE   HOMICIDE.  233 

As  to  the  person  who  causes  deaths — ^it  is  enongh  in  this 
place  to  say  that^  in  the  absence  of  proof  of  unsoundness  of 
mind^  incapacity  to  know  the  nature  of  the  act  done^  or  of 
some  other  of  those  General  Exceptions  applicable  to  Homi- 
cide which  declare  the  thing  done  not  to  be  an  offence,  all 
persons  who  are  liable  to  punishment  under  this  Code  may 
commit  the  offence  of  Culpable  Homicide. 

Of  the  nature  of  the  act  or  of  the  illegal  omission  which 
causes  the  deaths  it  is  to  be  observed  that  no  one  of  the  endless 
variety  of  modes  by  which  human  life  may  be  cut  short  before 
it  becomes  in  the  course  of  nature  extinct,  is  excluded.  It 
is  not  even  necessary  that  there  should  be  any  external  act 
of  violence,  or  any  act  directly  causing  corporal  injury.  For 
where  death  is  produced  by  the  effect  of  mere  words  on  the 
imagination  or  passions,  the  speaking  or  writing  of  those  words 
may  be  an  act  within  the  definition.  Nor  is  any  limit  fixed  to 
the  interval  of  time  which  may  elapse  between  the  doing  of 
the  act  and  the  death  which  is  thereby  cansed. 

This  unqualified  use  of  the  words  '^  to  cause  death''  is  thus 
referred  to  by  the  original  framers  of  the  Code.  "  We  long 
considered  whether  it  would  be  advisable  to  except  from  this 
definition  any  description  of  acts  or  illegal  omissions,  on  the 
ground  that  such  acts  or  illegal  omissions  do  not  ordinarily 
cause  death,  or  that  they  cause  death  very  remotely.  We  have 
determined,  however,  to  leave  the  clause  in  its  present  simple 
and  comprehensive  form. 

"  There  is  undoubtedly  a  great  difference  between  acts  which 
cause  death  immediately,  and  acts  which  cause  death  remotely ; 
between  acts  which  are  almost  certain  to  cause  death,  and  acts 
which  cause  death  only  under  very  extraordinary  circum- 
stances. But  that  difference,  we  conceive,  is  a  matter  to  be 
considered  by  the  tribunals  when  estimating  the  effect  of  the 
evidence  in  a  particular  case,  not  by  the  legislature  in  framing 
the  general  law.  It  will  require  strong  evidence  to  prove  that 
an  act  of  a  kind  which  very  seldom  causes  death,  or  an  act 
2   H 


234  CHAPTER   XVI. 

^faich  has  caused  death  very  remotely^  has  actually  caused 
death  in  a  particular  case.  It  will  require  still  stronger  evi- 
dence to  prove  that  such  an  act  was  contemplated  by  the 
person  who  did  it  as  likely  to  cause  death.  But  if  it  be  proved 
by  satisfactory  evidence  that  death  has  been  so  caused^  and  has 
been  caused  voluntarily,  we  see  no  reason  for  exempting  the 
person  who  caused  it  from  the  punishment  of  vduntary  cul- 
pable homicide.^' 

They  furth'er  remark  on  the  subject  of  death  caused  by  the 
effect  of  words  on  the  imagination  or  the  passions.  "  The 
reasonable  course,  in  our  opinion,  is  to  consider  spiking  as 
an  act,  and  to  treat  A  as  guilty  of  voluntary  culpable  homicide, 
if  by  speaking  he  has  voluntarily  caused  Z's  death,  whether 
his  words  operate  circuitously  by  inducing  Z  to  swallow  poison, 
or  directly  by  throwing  Z  into  convulsions. 

'*  There  will  indeed  be  few  homicides  of  this  latter  sort.  It 
i^pears  to  us  that  a  conviction,  or  even  a  trial,  in  such  a  case 
would  be  an  event  of  extremely  rare  occurrence.  There  would 
probably  not  be  one  such  trial  in  a  century.  It  would  be  most 
difficult  to  prove  to  the  conviction  of  any  Court  that  death  had 
really  been  the  effect  of  excitement  produced  by  words.  It 
would  be  still  more  difficult  to  prove  that  the  person  who 
spoke  the  words  anticipated  from  them  an  effect  which,  except 
under  v^  peculiar  circumstances,  and  on  very  peculiar  con* 
stitutions,  no  words  would  produce.  Still  it  seems  to  us  that 
both  these  points  might  be  made  out  by  overwhelming  evi- 
dence j  and,  supposing  them  to  be  so  made  out,  we  are  unable 
to  perceive  any  distinction  between  the  case  of  him  who  volun- 
tarily causes  death  in  this  manner,  and  the  case  of  him  who 
voluntarily  causes  death  by  means  of  a  pistol,  or  a  sword. 
Suppose  it  to  be  proved  to  the  entire  conviction  of  a  criminal 
eourt  that  Z,  the  deceased,  was  in  a  very  critical  state  of 
health,  that  A,  the  heir  to  Z^s  property,  had  been  informed 
by  Z's  physicians,  that  Z^s  recovery  absolutely  depended  on  his 
being  kept  quiet  in  mind,  and  that  the  smallest  mental  excite- 
ment would  endanger  his  life,  that  A.  immediately  broke  into 


CULPABLE   HOKtCIDE.  235 

Z'g  sick  room^  and  told  him  a  dreadfiil  piece  of  intelligenoe 
which  was  a  pure  inrention^  that  Z  went  into  fits^  and  died  on 
the  spot^  that  A  had  afterwards  boasted  of  having  cleared  the 
way  for  himself  to  a  good  property  by  this  artifice.  These 
things  being  fnlly  proved^  no  jndge  conld  doubt  that  A  had 
volantarily  caased  the  death  of  Z ;  nor  do  we  peroeire  any 
reason  for  not  pnnishing  A  in  the  same  manner  in  which  he 
wonld  hare  been  punished  if  he  had  mixed  arsenic  in  Z's 
medicine*  The  general  role^  therefore,  which  we  propose  is, 
that  the  question  wheth^  a  person  has  by  an  «ct  or  illegal 
omis^on  Tokintarily  caused  death  shall  be  1^  a  question  of 
evidence  to  be  decided  by  ihe  CkMirts,  according  to  the  circum* 
stances  of  every  case/' 

In  nK>st  oases  the  act  which  caittes  death -is  apparent  and 
there  can  be  no  d^Btculty  in  connecting  cause  and  e&ct,  as 
where  a  man  is  stabbed  or  receives  a  deadly  blow  or  wound. 
But  in  other  cases,  where  the  blow  which  is  a  primly  cause 
is  widely  separated  from  its  ultimate  effect,  death,  the  connec'^ 
tion  between  them  will  admit  of  various  degrees  of  probabi« 
Kty  :  and  so,  where  the  death  may  have  partially  resulted  from 
concfurent  causes,  or  may  have  wholly  resulted  from  indepen- 
dent causes. 

Thus  the  deliberate  use  by  a  sane  man  of  d^aiUy  weapons, 
the  deliberate  discharge  of  loaded  firearms,  leads  at  once  to 
the  inference  that  his  intention  wm  to  cause  death.  No 
proof  of  intention  beyond  that  which  such  an  act  of  itself 
supplies  is  requisite ;  and  a  Court  would,,  in  such  a  case,  convict 
the  offender,  because  his  intention  to  cause  death  is  an  infer* 
ence  to  be  drawn  almost  as  a  matter  of  law  which  no  Court 
would  be  justified  in  disregarding.  Where  death  is  the  natural 
and  probal>le  result  of  the  act,  no  further  proof  of  intention 
or  knowledge  shoidd  be  required* 

But  this  presumption  of  intention  does  not  arise,  or  it  ceases, 

when  by  other  extrinsic  evidence,   the  real  nature  of  the  act 

which  causes  death  is  explained.     For  instance,  B  may  prove 

{see  Dlustration  b  of  this  Section)  that  he  fired  at  a  bush  not 

2  n  2 


236  CHAPTER  XVI. 

knowing  Z  to  be  behind  it,  and  not  intending  or  knowing  it 
to  be  likely  that  any  harm  would  ensue ;  or  he  may  prove  that 
the  discharge  of  the  gun  was  accidental  and  not  deliberate. 
In  like  manner,  proof  may  be  adduced  to  show  that  the  death 
was  caused  by  any  other  accident  or  misfortune,  or  that  the 
act  which  caused  death  was  justifiable  under  the  circumstances. 

It  is  also  important  to  observe  that  the  existence  of  in- 
tention or  knowledge  is  not  to  be  inferred  unless  death  follows 
as  a  natural  and  probable  consequence  from  the  act.  There- 
fore, where  a  deadly  weapon  is  not  used,  but  death  is  caused  by 
a  push  or  a  blow,  so  slight  as  to  be  calculated  to  inflict  upon  a 
healthy  person  little  more  than  momentary  pain,  yet  causing 
death  because  the  person  struck  was  labouring  under  disease, — ^it 
would  be  unjust  to  infer  intention  or  knowledge.  In  such  a  case 
the  fatal  consequences  have  been  occasioned  by  a  trivial  act  and 
are  far  from  being  the  natural  and  probable  consequences  of 
such  acts  :  and  it  is  therefore  fair  to  suppose  in  the  absence  of 
other  proof,  that  the  offender  never  contemplated  such  results 
as  possible.  In  such  cases  it  should  be  shown  by  extrinsic  evi- 
dence what  the  real  intent  or  knowledge  was.  It  should  be 
proved,  for  instance,  if  such  an  act  is  charged  as  murder,  that  the 
offender  was  well  aware  of  the  existence  of  the  disease,  and  that 
the  blow  was  designedly  directed  at  the  diseased  part.  When- 
ever death  is  the  result  of  an  act  not  calculated  in  the  ordinary 
course  of  nature  to  cause  death,  it  is  especially  incumbent  on  the 
Courts  before  convicting  a  person  of  the  offence  of  culpable  ho- 
micide, to  satisfy  itself  by  credible  evidence  that  an  intention 
to  cause  death,  or  a  knowledge  that  the  act  was  likely  to  cause 
death,  really  existed  in  the  mind  of  the  accused. 

In  that  class  of  cases  already  mentioned  in  which  the  direct 
influence  of  the  primary  cause  is  small,  the  death  occurring 
under  extraordinary  intervening  circumstances  to  which  alone 
it  appears  to  be  due^  no  presumption  of  intention  or  knowledge 
can  be  said^to  arise.  The  existence  of  intention  or  knowledge  is 
not  to  be  inferred  in  such  cases,  but  to  be  proved  specifically  like 
any  other  substantive  matter-of-fact.     Hence  arises  a  dijfficulty 


CULPABLE   HOMICIDE.  237 

in  supporting  a  charge  of  culpable  homicide^  where  death  is 
caused  under  such  circumstances.  Cases  of  this  class  demand 
from  the  Court  a  most  cautious  and  deliberate  consideration, — 
first  of  the  evidence  adduced  to  sfiow  that  death  has  been  caused 
hj  the  primary  act  or  cause,  and  then  of  the  evidence  to  prove 
the  intention  or  knowledge  with  which  that  act  was  done.  "  It 
will  require  strong  evidence  to  prove  that  an  act  of  a  kind  which 
very  seldom  causes  death,  or  an  act  which  has  caused  death 
very  remotely,  has  actually  caused  death  in  a  particular  case. 
It  will  require  still  stronger  evidence  to  prove  that  such  an  act 
was  contemplated  by  the  person  who  did  it  as  likely  to  cause 
death/'  Without  satisfactory  evidence  that  death  has  been  so 
caused  and  contemplated,  no  Court  should  convict  an  offender 
of  culpable  homicide.* 

*  In  the  note  which  has  already  been  referred  to,  the  Indian  Law  Commission" 
ers,  in  alluding  to  the  case  of  a  person  who  dies  of  a  slight  wound  which,  from 
neglect,  or  firom  the  application  of  improper  remedies,  has  prgved  mortal, 
observe :  **  We  see  no  reason  for  excepting  such  cases,  &om  the  simple  general  rule 
which  we  propose.  It  will,  indeed,  be  in  general  more  difficult  to  prove  th^ 
death  has  b^n  caused  by  a  scratch,  than  hy  a  stab  which  has  reached  the  heart : 
and  it  will  in  a  still  greater  degree  bo  more  difficult  to  prove  that  a  scratch  was 
intended  to  cause  death,  yet  both  these  points  might  be  fully  established. 
Suppose  such  a  case  as  the  following.  It  is  proved  that  A  inflicted  a  slight 
wound  on  Z,  a  child  who  stood  between  him  and  a  large  property.  It  is  proved 
that  the  ignorant  and  superstitious  servants  about  Z  applied  fiie  most  absurd 
remedies  to  the  wound.  It  is  proved  that  under  their  treatment  the  wound 
mortified  and  the  child  died.  Letters  from  A  to  a  confidant  are  produced.  In 
these  letters,  A  congratulates  himself  on  his  skill,  remarks  that  he  could  not 
have  inflicted  a  more  severe  wound  without  exposing  himself  to  be  punished  as  a 
murderer,  relates  with  exultation  the  mode  of  treatment  followed  by  the  people 
who  have  charge  of  Z,  and  boasts  that  he  always  foresaw  that  they  would  turn  the 
■lightest  incision  into  a  mortal  wound.  It  appears  to  us  that  if  such  evidence 
were  produced,  A  ought  to  be  punished  as  a  murderer. 

"  Again,  suppose  that  A  makes  a  deliberate  attempt  to  commit  assassination. 
In  the  presence  of  numbers  he  aims  a  knife  at  the  heart  of  Z.  But  the  knife 
glances  aside,  and  inflicts  only  a  slight  wound.  In  such  a  case  there  is  no  doubt 
whatever  as  to  the  intention.  Suppose  that  the  person  who  received  the  wound 
is  under  the  necessity  of  exposing  himself  to  a  moist  atmosphere  immediately 
afterwards,  and  that  in  consequence,  he  is  attacked  with  tetanus,  and  dies. 
Hero  again,  however  slight  the  wound  may  have  been,  we  are  unable  to  perceive 
any  good  reason  for  not  punishing  A  as  a  murderer/' 


238  CHAPTER  XVI. 

MURDER. 

The  distinction  between  homicides  which  are  culpable^  and 
homicides  which  are  not  culpable^  has  been  noticed.  It  has 
been  shewn  that  the  operation  of  the  General  Exceptions  con- 
tained in  the  Code^  excludes  from  its  penal  provisions  all  homi- 
cides which  are  not  comprehended  under  the  definition  given 
in  the  preceding  Section  of  the  offence  of  culpable  homicide. 

Under  this  head  of  '^  murder^'^  we  shall  consider  the  distinc- 
tion between  murder  and  other  culpable  homicides. 

Culpable  homicide  is  the  general  name  given  to  a  variety  of 
offences^  of  characters  so  different^  that  the  Code  visits  them 
with  discriminating  punishments^  ranging  from  capital  punish- 
ment to  a  light  fine.  All  these^  however,  have  this  in  common^ 
that  the  death  of  a  human  being  has  been  caused  by  some  act 
or  illegal  omission  which  deserves  punishment. 

There  is  one  great  division  of  this  offence, — the  division  be- 
tween culpable  homicide  which  is  murder,  and  culpable  homicide 
which  does  not  amount  to  murder. 

Culpable  homicide  which  is  murder  is  thus  distinguished 
from  all  other  descriptions  of  culpable  homicide— 

300.     Except  in  the  cases    hereinafter  excepted, 

culpable  homicide  is  murder, 
Tirder.  j£  ^j^^  ^  ^^^  which  the  death 

is  caused  is  done  with  the  intention  of  causing 
death,  or — 

2ndly.  If  it  is  done  with  the  intention  of  causing 
such  bodily  injury  as  the  oflFender  knows  to  be  likely 
to  cause  the  death  of  the  person  to  whom  the  harm 
is  caused :  or — 

^rdly.  If  it  is  done  with  the  intention  of  causing 
bodily  injury  to  any  person  and  the  bodily  injury 
intended  to  be  inflicted  is  sufl5cient  in  the  ordinary 
course  of  nature  to  cause  death ;  or — 

^thly.  If  the  person  committing  the  act  knows 
that  it  is  so  imminently  dangerous  that  it  must  in 
all  probability  cause  death  or  such  bodily  injury  as  is 


MTJRPEE.  239 

likely  to  cause  death,  and  oommits  such  act  without 
any  excuse  for  incurring  the  risk  of  causing  death  or 
such  injury  as  aforesaid. 

Ulustrations, 

(a)  A  shoots  Z  with  the  intention  of  killing  him.  Z  dies  in  con- 
sequ^ice.    A  commits  murder. 

(6)  A,  knowing  that  Z  is  labouring  under  such  a  disease  that  a 
blow  is  likely  to  cause  his  death,  strikes  him  with  intention  of  causing 
bodily  injury.  Z  dies  in  consequence  of  the  blow.  A  is  guilty  of 
murder,  although  the  blow  might  not  have  been  sufficient  in  the 
ordinary  course  of  nature  to  cause  the  death  of  a  person  in  a  sound 
state  of  health.  But  if  A,  not  knowing  that  Z  is  labouring  under 
any  disease,  gives  him  such  a  blow  as  would  not  in  the  ordinary  course 
of  nature  kill  a  person  in  a  sound  state  of  health,  here  A,  although  he 
may  intend  to  cause  bodily  injury,  is  not  guilty  of  murder,  if  he  did 
not  intend  to  cause  death,  or  such  bodily  ij\jury  as  in  the  ordinary 
course  of  nature  would  cause  death. 

(c)  A  intentionally  gives  Z  a  sword-cut  or  club-wound  sufficient  to 
•ause  the  death  of  a  man  in  the  ordinary  course  of  nature.  Z  dies 
in  consequence.  Here  A  is  guilty  of  murder,  although  he  may  not 
have  intended  to  cause  Z's  death. 

(d)  A,  without  any  excuse,  fires  a  loaded  cannon  into  a  crowd  of 
persons  and  kills  one  of  them.  A  is  guilty  of  murder,  although  he  may 
not  have  had  a  premeditated  design  to  kill  any  particular  individu^. 

According  to  this  definition,  culpable  homicide  is  murder, 
unless  it  be  one  of  the  mitigated  descriptions  of  homicide 
mentioned  in  the  five  Exceptions  which  follow.  The  definition 
requires  that  we  should  consult^ — first  the  definition  of  culpable 
homicide  in  the  expanded  form  in  which  it  appears  in  the 
present  Section,  and  then  the  several  Exceptions  containing  the 
mitigating  circnmstances  which  reduce  the  offence  of  murder 
to  culpable  homicide  not  amounting   to   murder.*     Each   of 

*  It  may  be  thought  deeirable  in  so  important  a  matter  not  to  define  merely 
by  inference.  QeneraUy  speaking  those  who  haye  to  administer  the  law  ought  at 
once  to  be  able  to  find  in  the  definition  of  a  crime,  all  its  qnalifications,  expressed 
plainly  and  completely  in  the  definition  itself.  Bnt  the  mode  of  description  by 
reierenoe  to  other  clauses  has  an  advantage  over  tliat  of  a  simple  definition  of 
the  offence  of  murder  (if  a  simple  definition  can  be  devised  :  for  should  any 
words  contained  in  such  a  definition  be  liable  to  misoonstruotion,  an  act  of  culpa- 
ble  homicide  properly  coming  within  the  lower  degree  of  that  offence,  might  be 
brought  within  the  definition  of  the  higher.  The  act  of  taking  human  life  is 
the  same  in  all.  The  attention  should,  therefore,  to  avoid  error,  be  drawn  to  all 
the  oiroumstanoea  that  would  bring  the  act  into  a  lower  degree  of  the  offence, 
before  the  punishment  due  to  the  highest  is  inflicted,  and  the  law  should  be  so 
framed  as  to  oblige  those  who  administer  it  to  make  this  examination.     By  this 


240  CHAPTER  XVI. 

the  four  clauses  of  the  Section  requires  that  the  act  which  causes 
death  should  be  done  intentionally^  or  with  the  knowledge  or 
means  of  knowing  that  death  is  a  natural  consequence  of  the 
act.     Each  clause  is  explained  by  an  illustration. 

The  fourth  clause  appears  to  be  designed  to  provide  for  that 
class  of  cases  where  the  acts  resulting  in  death  are  calculated 
to  put  the  lives  of  many  persons  in  jeopardy  without  being  aimed 
at  any  one  in  particular,  and  are  perpetrated  with  a  full  conscious- 
ness of  the  probable  consequence.  As,  for  example,  where  death 
is  caused  by  firing  a  loaded  gun  into  a  crowd,  by  poisoning  a 
well  from  which  people  are  accustomed  to  draw  water,  by  open- 
ing the  draw  of  a  bridge  just  as  a  railway  passenger  train  is 
about  to  pass  over  it.  In  such  and  the  like  cases,  the  imminently 
dangerous  act,  the  extreme  depravity  of  mind  and  the  regard- 
lessness  of  human  life,  properly  place  the  crime  upon  the  same 
level  as  the  taking  of  life  by  deliberate  intention. 

The  concluding  words  of  this  clause  '^  and  commits  such  act 
without  any  excuse,  &dc"  probably  refer  to  such  an  excuse  aa 
is  contemplated  by  Section  81. 

It  will  be  noticed  that  this  definition  of  murder  does  not 
recognize  different  degrees  of  the  ofiBnce.  The  killing  of  a 
human  being  with  the  intention  or  knowledge  mentioned  in 
the  definition,  is  not  less  murder  when  it  is  committed  under 
such  circumstances  as  show  no  specific  intention  to  kill,  than 
when  it  is  perpetrated  by  means  of  poison,  or  lying  in  wait, 
or  by  any  other  kind  of  wilful,  deliberate  and  premeditated 
killing.  But  the  Courts  in  awarding  punishment  for  murder 
(see  Section  302)  are  enabled  to  distinguish  between  the  several 
gradations  of  enormity  which  the  cases  may  disclose. 

We  shall  proceed  to  consider  the  Exceptions  which  contain  th6 
mitigating  circumstances  by  which  the  offence  of  murder  is  re- 
duced to  culpable  homicide,  not  amounting  to  murder. 

Code  no  jndge  can  condemn  for  mnrder,  until  he  has  examined  all  the  lighter 
shades  of  homicide,  and  is  conyinced  that  the  circmnstances  of  the  case  do  not 
bring  the  accnsed  within  any  of  the  exceptions.  The  form  of  the  law  imposes 
this  obligation. 


HOMICIDE   APTEE  PROYOCATION.  241 

Culpable  homicide  caused  by  provocation. 

Homicide  committed  in  the  sudden  heat  of  passion  on  great 
provocation  is  not  murder,  although  it  is  an  offence  which  ought 
to  be  punished,  and  which  in  some  cases  deserves  severe  punish- 
ment. We  have  seen  that  the  immaturity  of  understanding,  the 
nnsonndness  of  mind,  or,  in  certain  cases,  the  intoxication,  of 
the  person  doing  an  act,  exempts  him  from  all  criminal  respon- 
sibility in  respect  of  the  act,  and  its  consequences.  The  law 
does  not  extend  this,  exemption  to  the  acts  of  those  who  are 
deprived  by  passion  of  the  power  of  self-control ;  but  it  grants 
some  indulgence  to  such  persons.  It  punishes  their  acts,  in 
order  to  teach  men  to  entertain  a  peculiar  respect  for  human 
life,  and  in  order  to  give  men  a  motive  for  accustoming  them- 
selves to  govern  their  passions.  But  ordinarily  it  does  not 
punish  such  persons  as  murderers,  when  they  cause  death.  For 
anger  is  a  passion  to  which  good  and  bad  men  are  both  subject, 
and  mere  human  frailty  and  infirmity  ought  not  to  be  punished 
equally  with  ferocity  or  other  evil  feelings. 

The  Indian  Law  Commissioners,  by  whom  the  Code  was 
framed,  say — "  In  general  we  would  not  visit  homicide  com- 
mitted in  violent  passion  which  had  been  suddenly  provoked 
with  the  highest  penalties  of  the  law.  We  think  that  to  treat 
a  person  guilty  of  such  homicide  as  we  should  treat  a  murderer, 
would  be  a  highly  inexpedient  course — a  course  which  would 
shock  the  universal  feeling  of  mankind,  and  Would  engage  the 
public  sympathy  on  the  side  of  the  delinquent  against  the  law.'' 

Exception  1.     Culpable  homicide  is  not  murder  if 
When  otdpabio  homicide  is    the  offender,  whilst  deprived 
not  murder.  ^f  the  po  wer  of  self-coutrol  by 

grave  and  sudden  provocation,  causes  the  death  of  the 
person  who  gave  the  provocation,  or  causes  the  death 
of  any  other  person  by  mistake  or  accident. 

Explanation.    Whether  the  provocation  was  grave 
and    sudden    enough  to  prevent  the  offence  from 
amounting  to  murder  is  a  question  of  fact, 
2  I 


242  CHAPTER  XVI. 

lUustratiofu. 

(a)  A,  under  the  influence  of  passion  excited  by  a  provocation 
given  by  Z,  intentionally  kills  T,  Z's  child.  This  is  murder,  inasmuch 
as  the  provocation  was  not  ^ven  by  the  child,  and  the  death  of  the 
child  was  not  caused  by  accident  or  misfortune  in  doing  an  act  caused 
by  the  provocation. 

(b)  Y  gives  grave  and  sudden  provocation  to  A.  A,  on  this  pro- 
vocation, (ires  a  pistol  at  Y,  neither  intending  nor  knowing  himself  to 
be  likely  to  kill  Z,  who  is  near  him,  but  out  of  sight.  A  kills  Z. 
Here  A  has  not  committed  murder,  but  merely  culpable  homicide. 

''  Deprived  of  self-control.''  When  the  derangement  of  the 
mind  reaches  that  degree  that  the  judgment  and  reason  cease 
to  hold  dominion  over  it, — their  authority  being  suspended  and 
yielding  place  to  violent  and  ung  vemable  passion, — the  man 
who  was  before  a  rational  being  is  no  longer  the  master  of  his 
own  understanding,  becomes  incapable  of  cool  reflection,  and 
ceases  to  have  control  over  his  passions.  It  is  to  such  a  state 
of  mind  that  the  law  in  judging  of  acts  which  cause  death, 
gives  indulgent  consideration.  And  no  mental  perturbation  or 
agitation  which  falls  short  of  this,  and  leaves  sway  to  reason 
and  the  power  of  self-control,  can  reduce  a  murder  to  an  offence 
within  the  range  of  this  mitigating  exception. 

Terror  or  fear,  no  less  than  anger,  may  deprive  a  man  of  the 
power  of  self-control. 

"Grave  and  sudden  provocation.''  It  is  not  a  sufficient 
extenuation  that  the  act  is  done  under  the  influence  of  passion 
or  some  other  feeling  which  takes  away  the  power  of  self- 
control.     The  passion,  &c.  must  have  an  adequat^e  cause. 

The  Code  does  not  attempt  to  enumerate  or  define  what 
causes  shall  be  admitted  to  be  adequate  causes.  It  declares 
only  that  excitement  or  want  of  self-control  must  proceed 
from  grave  and  sudden  provocation :  and  it  then  leaves  it 
to  the  Court  to  decide  as  a  question  of  fact,  whether  the 
provocation  was  grave  and  sudden  enough  to  prevent  the 
offence  from  amounting  to  murder.  The  general  principle 
being  ascertained  to  be  the  loss  of  self-control  arising  from  great 


HOMICIDE  AFTER  PROVOCATION.  243 

human  infirmity, — which  is  so  general  and  almost  universal 
as  to  render  it  proper  to  make  allowance  for  it  in  admeasuring 
punishment, — ^the  subject  is  left  to  be  dealt  with  in  each  parti- 
cular case  as  a  matter  of  fact  unfettered  by  arbitrary  distinctions. 
But  notwithstanding  that  it  is  declared  to  be  a  question  of 
fact^  it  is  not  to  be  supposed  that  in  a  matter  so  important 
the  mere  private  opinion  of  each  judicial  officer  is  the  true  rule  of 
judgment.  Certain  general  roles  for  the  guidance  of  his  dis- 
cretion must  be  recognized,  although,  subject  to  them,  each  case 
is  to  be  disposed  on  a  due  consideration  of  its  special  circum- 
stances. 

Bearing  in  mind  that  the  exception  is  founded  upon  a  prin- 
ciple of  indulgence  shewn  by  the  law  to  human  frailty  but  not 
to  human  ferocity,-^it  may  be  safely  laid  down  that  the  pro- 
vocation which  is  allowed  to  extenuate,  most  be  something 
which  a  man  is  conscious  of,  and  which  he  feels  keenly,  and 
resents,  at  the  instant  the  act  which  he  would  extenoate  is 
committed.  A  permanent  sobjection  to  a  wicked  and  croel 
disposition  does  not  mitigate  or  excose  an  offence.  So,  if  the 
act  can  be  traced  to  a  previoos  brutal  malignity,  and  not  merely 
to  the  influence  of  passion  arising  from  provocation^  however 
grave  and  sudden  the  provocation,  it  will  not  extenuate. 

Sometimes  the  act  itself  most  point  to  a  previous  deter- 
mination to  murder.  Soppose  B  is  poisoned  by  A.  It  is  proved 
that  A  had  previoosly  booght  the  poison  and  prepared  the  cop, 
but  that,  at  or  immediately  before  the  time  of  administering  it, 
he  received  from  B  in  a  quarrel,  grave  and  sudden  provocation 
in  the  shape  of  severe  blows.  The  blows  are  not  to  be  allowed 
to  cloak  what  he  does,  if  it  is  evident  (as  it  probably  would  be) 
that  what  he  does  is  not  done  in  consequence  of  the  blows,  but 
in  consequence  of  his  previous  design  to  cause  death.  His 
mind  may  be  agitated  at  the  time :  but  this  is  not  enough,  if  the 
act  is  not  done  in  consequence  of  such  agitation.  Thought, 
contrivance,  and  design,  shewn  by  preparations  made  before  any 
provocation^  tend  to  shew  that  his  subsequent  act  proceeds 
from  his  predetermination,  and  that  it  is  the  result  of  judgment 
2  I  2 


244  CHAPTEE  XVI. 

and  reason.  The  fatal  act  cannot  in  such  a  case  be  supposed  td 
be  owing  to  want  of  self-control  caased  by  the  excitement. 

As  to  what  acts  amount  to  a  provocation  grave  as  well  as 
sudden^ — this  is  a  question  of  fact  to  be  determined  on  the 
evidence^  and  no  restrictive  or  exclusive  rule  can  be  admitted. 
It  would  seem  that  the  particular  temperament  of  the  person 
provoked,  whether  this  be  known  or  unknown  to  the  provoker, 
is  not  wholly  to  be  disregarded.  But  even  if  we  assume 
that  no  allowance  can  be  made  for  this,  and  that  the  provo- 
cation must  be  of  that  nature  and  degree  which  commonly 
produces  in  men  of  ordinary  tempers  an  irritation  of  mind 
which  renders  them  incapable  of  calculating  the  consequences 
of  their  acts,  there  are  some  provocations  which  cannot  but  be 
allowed  by  common  consent  to  be  grave  enough  to  mitigate 
homicide.  On  the  other  hand  there  are  many  trivial,  and  some 
considerable,  provocations  which  will  not  probably  be  deemed 
sufiScient  to  extenuate  an  act  of  homicide  upon  a  view  of  the 
whole  of  the  facts  of  the  case  in  which  they  occur. 

K  a  person  strikes  another  with  a  deadly  weapon,  or  assaults 
him  with  blows  causing  great  bodily  pain  or  bloodshed, — or  if  he 
in  a  serious  personal  conflict  assails  him,  having  a  great  superio- 
rity of  personal  strength  or  skill, — the  provocation  would  seem 
sufficiently  grave  to  extenuate.  So  a  blow  given  to  a  man^s 
wife  or  child  may  well  be  deemed  to  have  the  same  provocative 
power  as  one  given  to  himself.  The  discovery  of  the  wife  of 
the  accused  in  the  act  of  adultery  with  the  person  killed,  is 
generally  admitted  to  be  an  adequate  cause  of  provocation. 
And  any  like  grievous  outrage,  although  wounding  only  the 
honor  and  the  affections,  may  be  thought  cause  sufficient.  On 
this  subject,  after  referring  to  the  case  of  this  paramour  caught 
in  the  act  of  adultery,  the  Indian  Law  Commissioners  say — 
"We  must  own  that  we  can  see  no  reason  for  making  a 
distinction  between  this  provocation  and  many  other  provo- 
cations of  the  same  kind.  We  cannot  consent  to  lay  it  down 
as  an  universal  rule  that  in  all  cases  this  provocation  shall  be 
considered  as  an  adequate  provocatiou.     Circumstances  may 


HOMICIDE  AFTER  PROVOCATION.       245 

easily  be  conceived  which  would  satisfy  a  Court  that  a  husband 
had  in  such  a  case  acted  from  no  feeling  of  wounded  honor  or 
aflfection,  but  from  mere  brutality  of  nature,  or  from  disap- 
pointed cupidity.  On  the  other  hand,  we  conceive  that  there 
are  many  cases  in  which  as  much  indulgence  is  due  to  the 
excited  feelings  of  a  father,  or  a  brother  as  to  those  of  a 
husband.  That  a  worthless,  unfaithful,  and  tyrannical  husband 
should  be  guilty  only  of  manslaughter  for  killing  the  paramour 
of  his  wife,  and  that  an  affectionate  and  high-spirited  brother 
should  be  guilty  of  murder  for  killing  in  a  paroxysm  of  rage 
the  seducer  of  his  sister,  appears  to  us  inconsistent  and  un- 
reasonable. 

"  There  is  another  class  of  provocations  which  some  jurists 
do  not  allow  to  be  adequate  in  law,  but  which  have  been,  and, 
while  human  nature  remains  unaltered,  will  be  adequate  in  fact 
to  produce  the  most  tremendous  effects.  Suppose  a  person  to 
take  indecent  liberties  with  a  modest  female  in  the  presence  of 
her  father,  her  brother,  her  husband,  or  her  lover.  Such  an 
assault  might  have  no  tendency  to  cause  bodily  pain,  or  danger ; 
yet  history  tells  us  what  effects  have  followed  from  such 
assaults.  It  is  diflScult  to  conceive  any  class  of  cases  in  which 
the  intemperance  of  anger  ought  to  be  treated  with  greater 
lenity.  So  far,  indeed,  should  we  be  from  ranking  a  man  who 
causes  death  under  such  provocation  with  murderers,  that  we 
conceive  that  a  Judge  would  exercise  a  sound  discretion  in 
sentencing  such  a  man  to  the  lowest  punishment  fixed  by  the 
law  for  manslaughter." 

It  seems  that  an  assault  which  is  in  itself  slight  and  does  not 
cause  great  bodily  pain,  but  which  is  accompanied  by  words  of 
menace,  threats  or  other  circumstances  indicating  an  intention 
to  inflict  such  pain,  would  be  deemed  provocation  sufficient. 
On  the  other  hand,  a  mere  trespass  or  injury  to  lands  or  goods, 
a  breach  of  a  man's  word  or  promise,  words  of  reproach 
(including  the  word  of  denial),  mere  words  of  menace  of  bodily 
barm,  rant,  expressions  of  contempt,  indecent  and  provoking 
actions  or  gestures, — these  supposing  them  to  be  unaccom- 


246  CHAPTER  XVI. 

panied  by  any  act  showing  a  present  intention  to  commit  a 
grievous  personal  injury,  have  not  ordinarily  been  regarded  as 
sufficient  provocation  to  extenuate  the  depriving  a  man  of  his 
life.  And  it  must  be  admitted  that  violent  acts  of  resentment 
which  bear  no  proportion  to  the  provocation  or  insult  received, 
proceed  rather  from  brutal  malignity  than  human  frailty,  and 
ought  not  to  be  extenuated. 

But,  inasmuch  as  the  principle  of  extenuation  is  founded  on 
the  want  of  self-control  actually  occasioned  by  the  provocation, 
whatever  it  may  be,  it  must  not  be  forgotten  that  gross  insults  by 
words,  gesture,  or  even  caricature,  may  have  as  potent  a  ten- 
dency as  bodily  injuries  to  move  some  persons  on  a  sudden  to 
violent  passion.*  Moreover  the  intensity  of  the  provocation  may 
depend  less  on  words  or  blows  than  on  the  state  of  feelings  or 
health  of  the  person  provoked.     Severe  bodily  pain  may  render 


*  The  Indian  Law  Conunissioners  in  stating  their  opinion  that  no  good  reason 
can  be  assigned  for  making  any  distinction  between  cases  in  which  the  provoca- 
tion proceeds  from  mere  words  or  gestures  of  insult  and  cases  in  which  it  proceeds 
from  dangerous  -©r  painful  bodily  injuries  inflicted,  observe,  "  It  does  not  appear 
to  us  that  passion*  excited  by  insult  is  entitled  to  less  indulgence  than  passion 
excited  by  pain.  On  the  contrary,  the  circumstance  that  a  man  resents  an  insult 
more  than  a  wound  is  anything  but  a  proof  that  he  is  a  man  of  peculiarly  bad 
heart.  It  would  be  a  fortunate  thing  for  mankind  if  every  person  felt  an  out- 
rage which  lefl  a  stain  upon  his  honor  more  acutely  than  an  outrage  which  has 
frtlotured  one  of  his  limbs.  If  so  why  should  wo  treat  an  offence  produced  by 
the  blameable  excess  of  a  feeling  which  all  wise  legislators  desire  to  encourage, 
more  severely  than  we  treat  the  blameable  excess  of  feelings  certainly  not  moro 
respectable  ?" 

Referring  to  the  state  of  society .  in  India  they  say,  "  There  is  perhaps  no 
country  in  which  more  cruel  suffering  is  inflicted,  and  more  deadly  resentment 
called  forth,  by  injuries  which  affect  only  the  mental  feelings.  A  person  who 
should  offer  a  gross  insult  to  the  Mahomedan  religion  in  the  presence  of  a  zeal- 
ous professor  of  that  religion,  who  should  deprive  some  high-bom  Rajpoot  of 
his  caste,  who  should  rudely  thrust  his  head  into  the  covered  palanquin  of  a 
woman  of  rank,  would  probably  move  those  whom  he  insulted  to  more  violent 
anger  than  if  lie  had  caused  them  some  severe  bodily  hurt.  That  on  theso 
subjects  our  notions  and  usages  differ  from  theirs  is  nothing  to  the  purpose. 
We  are  legislating  for  them,  and  though  we  may  wish  that  Uieir  opinions  and 
feelings  may  imdergo  a  considerable  change,  it  is  oui-  duty,  while  their  opinions 
and  feelings  remain  unchanged,  to  pay  as  much  respect  to  those  opinions  and 
feelings  as  if  we  partook  of  them.  We  are  legislating  for  a  country  Where  many 
men,  and  those  by  no  means  the  worst  men,  prefer  death  to  the  loss  of  caste ; 
where  many  women,  and  those  by  no  means  the  worst  women,  would  consider 
themselves  as  dishonored  by  exposure  to  the  gaze  of  strangers  :  and  to  legislate 
for  such  a  country  as  if  the  loss  of  (Taste,  or  the  exposure  of  a  female  face,  were 
not  provocations  of  the  highest  order,  would,  in  our  opinion,  bo  unjust  and 
unreasonable. 


HOMICIDE   AITER  PROVOCATION.  247 

a   person   so  susceptible  of  passion  that  a  small  matter  may 
excite  him  violently. 

When  the  plea  of  provocation  caused  by  insulting  words, 
signs  or  gestures  is  offered  in  mitigation  of  homicide,  the 
administrators  of  the  law  may  properly  reject  it  in  one 
case^  and  as  properly  admit  it  in  another,  according  to  the 
character  and  condition  of  the  person  who  offers  it.  The 
framers  of  the  Code  lay  down  no  rule  that  insults  by  words  or 
gestures  shall  necessarily  be  considered  an  adequate  cause  of 
provocation,  while  for  the  reasons  assigned  by  them  they  think 
it  proper  to  recognize  and  allow  the  provocative  force  of  such 
insiilts.  The  great  mass  of  the  people  are  accustomed  to  the 
use  of  insulting  words  and  the  display  of  contemptuous  gestures. 
It  is  notorious  that  among  them  this  is  the  most  common  mode 
of  offering  insult.  Foul  language  and  indecent  gestures,  in 
consequence,  lose  much  of  their  offensiveness  to  them.  On  the 
other  hand  there  are  doubtless  very  many  persons  so  sensitive 
in  their  feelings  that  such  insults^  or  even  an  indignity  offered 
by  a  reflection  upon  their  integrity,  an  imputation  upon  their 
courage,  &c.,  might  excite  in  them  sudden  and  uncontrolable 
gusts  of  passion. 

Cases  may  occur  of  homicide  committed  in  some  manner  or 
by  some  instrument  not  likely  to  cause  death,  and  upon  pro- 
vocation of  a  slighter  kind  than  can  be  considered  grave.  In 
such  cases,  it  is  first  to  be  considered  and  ascertained  whether 
the  homicide  is  a  culpable  homicide,— or,  in  other  words,  whether 
the  act  was  done  with  that  intention  to  cause  death,  or  know- 
ledge that  death  was  a  probable  result,  which  is  a  necessary 
part  of  the  offence  of  culpable  homicide.  If  it  was  not,  no 
question  can  arise  under  this  or  any  of  the  subsequent  Excep- 
tions. 

*'  Whilst  deprived  of  the  power  of  self-control,  &c.'^  If  the 
act  is  not  done  under  the  immediate  influence  of  the  excitement, 
but  after  such  an  interval  of  time  as  in  the  common  course  of 
human  feelings  is  sufficient  for  reflection,  or  with  the  interven- 


248  CHAPTER  XVI. 

tion  of  such  circumstances  as  must  naturally  produce  reflection, 
the  exception  is  inapplicable.  However  great  the  provocation, 
if  there  is  time  enough  for  passion  to  subside  and  for  reason  to 
interfere  and  to  regain  her  dominion^  the  homicide  will  be 
murder. 

If  a  man  finding  another  in  the  act  of  adultery  with  his  wife^ 
kills  him  at  the  time,  the  provocation  would  ordinarily  be 
deemed  sufficient  to  excuse  or  mitigate  his  offence.  But  if  he 
kills  the  adulterer,  deliberately  and  in  revenge,  after  a  consider- 
able interval  of  time  has  elapsed,  this  would  probably  be  held 
to  deprive  him  of  the  benefit  of  the  exception.  The  question 
whether  any  act  of  provocation  is  a  grave  or  sudden  enough  to 
mitigate  an  offence  is  always,  it  should  be  remembered,  a 
question  of  fact,  and  not  one  of  law. 

Sometimes  the  act  itself  which  causes  death  is  so  deliberate 
that  it  cannot  proceed  merely  from  the  reason  being  suspended 
owing  to  the  grave  and  sudden  provocation.  Thus  putting  a  rope 
round  the  neck  of  a  man  who  has  been  knocked  down,  and 
strangling  him, — or  procuring  a  deadly  weapon,  thought  and 
contrivance  being  shewn  in  doing  this  after  provocation  given, 
and  again  replacing  it  immediately  after  the  blow  has  been 
struck, — in  both  these  cases  the  act  is  done  from  some  cause 
beyond  the  sudden  provocation.  The  length  of  time  will  always 
be  an  important  consideration  in  such  cases  j  and  the  distance 
travelled.     The  existence  of  an  old  grudge  is  also  important. 

With  respect  to  the  interval  of  time  allowed  for  passion  to 
subside,  it  has  been  observed,  that  it  is  much  easier  to  lay 
down  rules  for  determining  what  cases  are  without  the  limits, 
than  how  far  exactly  those  limits  extend.  It  must  be  remem- 
bered, that  in  these  cases  the  immediate  object  of  enquiry  is, 
whether  the  suspension  of  reason  arising  from  sudden  passion 
continued  from  the  time  of  the  provocation  received,  to  the  very 
instant  of  the  mortal  stroke  given.  For  if,  from  any  oircum-? 
stance  whatever,  it  appears  that  the  party  reflected,  deliberated, 
or  cooled,  any  time  before  the  mortal  stroke  given,  or  if  there 
was  time  or  opportunity  for  cooling,  the  killing  will  amount  to 


HOMICIDE  AFTEE  PROVOCATION.       249 

marder,  it  being  attributable  to  malice  and  revenge,  rather 
than  to  human  frailty.  The  following  are  stated  as  general 
circumstanoes  amounting  to  evidence  in  disproof  of  the  party's 
having  acted  under  the  influence  of  passion  only.  If,  between 
the  provocation  received  and  the  stroke  given,  the  party  giving 
the  stroke  fall  into  other  discourse  or  diversions,  and  continue 
80  engaged  during  a  reasonable  time  for  cooling ;  or  if  he  take 
up  and  pursue  any  other  business  or  design  not  connected 
with  the  immediate  object  of  his  passion,  or  subservient  thereto, 
BO  that  it  may  be  reasonably  supposed  that  his  intention  was 
once  called  off  from  the  subject  of  his  provocation ;  or  again, 
if  it  appear  that  he  meditated  upon  his  revenge,  or  used  trick 
or  circumvention  to  eflfect  it,  which  shows  a  deliberation 
inconsistent  with  the  excuse  of  sudden  passion ; — in  these 
cases  the  killing  will  amount  to  murder.  It  may  fiirther  be 
observed,  in  respect  to  time,  that  in  proportion  to  the  lapse  of 
time  between  the  provocation  and  the  stroke,  less  allowance 
ought  to  be  made  for  any  excess  of  retaliation,  either  in  the 
instrument  or  the  manner  of  it.  The  mere  length  of  time 
intervening  between  the  injury  and  the  retaliation  is  evidence 
in  itself  of  deliberation. 

"  Causes  the  death  of  the  person  who  gave  the  provocation'* 
(see  the  Illustrations  given  below). 

This  Exception,  unlike  the  General  fejxceptions  of  Insanity, 
Infancy,  Ac,  holds  good  only  against  certain  persons.  Provoca- 
tion will  not  mitigate  or  excuse  an  act  which  proceeds  from  a 
general  determination  to  injure  any  man  who  may  come  in  the 
oflFender's  way.  Suppose  a  person  under  provocation  to  declare 
that  he  will  stab  any  man  entering  or  leaving  a  room, — or  that 
if  any  man  strikes  him  he  will  make  him  repent  it, — ^the  excep- 
tion would  not  avail  him,  except  as  against  the  person  provoking 
him. 

"  Or  causes  the  death  of  any  other  person  by  mistake  or  acci- 
dent."    The  following  Illustrations  are  given. 

(a)  A,  under  the  influence  of  passion  excited  by  a  provocation  giv- 
en by  Z,  intentionally  kills  Y,  Z*s  child.     This  is  murder,  inasmuch 

2   K 


250  CHAPTER  XVI. 

as  the  provocation  was  not  given  by  the  child  and  the  death  of  the 
child  was  not  caused  by  accident  or  misfortune  in  doing  an  act  caused 
by  the  provocation. 

(li)  Y  gives  g^ve  and  sudden  provocation  to -A.  A  on  this  pro- 
vocation, fires  a  pistol  at  Y,  neither  intending  nor  knowing  himself  to 
be  likely  to  kill  Z,  who  is  near  him,  but  out  of  sight.  A  kills  Z. 
Here  A  has  not  committed  murder,  but  merely  culpable  homicide. 

Passion  against  one  man  will  not  qualify  or  bring  within  the 
exception  the  homicide  of  another^  unless  it  proceeds  from  acci- 
dent or  mistake  (see  Section  80) ;  as  if  the  blow  aimed  at  one 
alights  on  another.  Gases  like  those  which  are  not  nnfreqaent 
of  a  person  under  excitement  running  amuck  and  killing  all  whom 
be  meets^  are  not  mitigated  by  this  exception. 

Where  several  persons  are  concerned  in  the  commission  of  the 
criminal  act  which  causes  deaths  they  may  be  guilty  of  different 
offences  by  means  of  that  act  (see  Section  38).  In  the  illus- 
tration (f)  appended  to  the  exception  now  under  consideration 
which  is  quoted  below,  A  the  bystander  abets  B  by  intentionally 
aiding  him. 

It  will  be  borne  in  miind  that  it  is  not  necessary  that  the 
person  abetted  should  have  the  same  guilty  intention  as  that  of 
the  abetter  (see  Section  108,  Explanation  3). 

The  abore  exception  is  subject  to  the  following 
provisoes : — 

First.  That  the  provocation  is  not  sought  or  vo- 
luntarily provoked  by  the  ofltender  as  an  excuse  for 
killing  or  doing  harm  to  any  person. 

(f)  Z  strikes  B.  B  is  by  this  provocation  excited  to  violent  rage* 
A,  a  bystander,  intending  to  take  advantage  of  B's  rage,  and  to  cause 
him  to  kill  Z,  puts  a  knife  into  B's  hand  for  that  purpose.  B  kills  Z 
with  the  knife.  Here  B  may  have  committed  only  culpable  homicide, 
but  A  is  guilty  of  murder. 

The  provocation,  however  grave  and  sudden  in  itself,  is  not 
to  cloak  an  act  which  really  proceeds  from  previous  deliberation 
and  design. 

Suppose  A  and  B  having  quarrelled,  A  says  he  will  not  strike 
but  will  give  B  a  rupee  if  he  dares  to  touch  him,  on  which  B 
strikes  and  A  kills  him, — or  A  otherwise  invites  B  to  some  act  of 


HOMICIDE   AFTEE  PROVOCATION.  261 

provocation  and  then  kills  him  for  it : — the  act  being  done  by  A^s 
consent  or  invitation^  given  with  a  view  to  excuse  what  he  deli- 
berately proposes  to  do  in  return,  is  not  a  sufficient  provocation. 
Again  A  without  consent  or  invitation  may  voluntarily  (that  is 
intentionally  or  by  means  which  he  knows  to  be  likely  to  have 
the  effect)  offer  provocation :  as  by  introducing  in  general 
discourse  topics  known  to  be  offensive,  touching  a  man's  domes- 
tic affairs,  &c.  Ordinarily  a  provocation  sought  on  the  part 
of  the  slayer  would  seem  rather  to  aggravate  than  to  mitigate 
his  offence. 

Where  the  act  which  causes  death  appears  to  be  the  conse- 
quence of  premeditation,  the  exception  is  inapplicable  whether 
the  provocation  is  sought  for  or  not.  If  the  act  does  not  in 
truth  proceed  from  the  provocation  or  its  consequence,  i,  e. 
the  deprivation  of  the  power  of  self-control^  it  is  not  mitigated. 

Secondly.  That  the  provocation  is  not  given  by 
anything  done  in  obedience  to  the  law  or  by  a  public 
servant  in  the  lawful  exercise  of  the  powers  of  such 
public  servant. 

(c)  A  is  lawfully  arrested  by  Z,  a  bailiff.  A  is  excited  to  sudden 
and  violent  passion  by  the  arrest,  and  kills  Z.  This  is  murder,  inas- 
much as  the  provocation  was  given  by  a  thing  done  by  a  public 
servant  in  the  exercise  of  his  powers. 

(i)  A  appears  as  a  witness  before  Z,  a  Magistrate.  Z  says  that 
he  does  not  believe  a  word  of  A's  deposition  and  that  A  has  perjured 
himself.  A  is  moved  to  sudden  passion  by  these  words,  and  kills  Z. 
This  is  murder. 

A  man  is  not  allowed  to  extenuate  murder^  however  great  the 
provocation  he  has  received,  if  the  provocation  be  given  by  public 
servants  or  other  persons  who  are  acting  in  obedience  to  the 
law's  commands  or  are  justified  by  law,  or  if  the  provocation 
be  given  by  public  servants  in  the  lawful  exercise  of  their 
powers.  Ministers  of  justice  especially,  and  all  public  servants 
while  in  the  execution  of  their  offices,  are  under  the  peculiar 
protection  of  the  law.  And  this  protection  is  not  confined  to 
them,  but  extends  to  private  persons  who  come  to  their  aid  and 
act  by  their  direction. 
2  K  2 


252  CHAPTER   XVI. 

We  have  seen  that  under  the  General  Exceptions  of  the  Code 
not  only  public  servants,  but  all  persons,  are  justified  in  respect 
of  acts  which  the  law  commands  or  authorizes  them  to  do. 
(See  Sections  76 — 79.)  Their  acts  being  justified,  it  follows 
that  resistance  is  unlawful  and  that  such  acts  afford  no  legal 
ground  of  provocation.  This  is  founded  in  reason  and  public 
utility.  A  man  would  not  quietly  submit  to  an  arrest,  if  the 
lawful  acts  of  the  person  empowered  to  make  the  arrest  should 
be  held  to  mitigate  his  homicide  by  the  person  to  be  arrested. 
The  consequence  would  be,  that  in  every  case  of  resistance  the 
officer  would  desist  and  leave  the  business  undone.  It  is  plain 
that  if  the  State  makes  it  the  duty  of  A,  a  police  constable,  to 
arrest  B,  it  would  be  unjust  to  A,  and  would  paralyze  the  admin- 
istration of  the  law,  if  it  were  justifiable  for  B  to  kill  A  on  the 
plea  of  provocation,  &c. 

But  the  protection  of  the  law  being  in  general  extended  only 
to  persons  who  have  lawful  authority,  and  who  use  that  authority 
in  a  proper  manner,  this  proviso  confines  within  the  same  limits^ 
those  acts  which  shall  be  deemed  not  to  constitute  a  sufficient 
provocation.  Questions  of  much  nicety  and  difficulty  may  often 
arise  touching  the  legality  of  process,  regularity  of  the  proceed- 
ing, and,  in  the  case  of  public  servants,  notice  of  the  character 
in  which  they  act,  &c. 

But  the  homicides  which  in  their  circumstances  fall  within 
the  operation  of  this  proviso,  are  those  only  in  which  the  public 
servant  or  other  person  killed  has  not  gone  beyond  the  law  in 
doing  that  which  has  caused  the  provocation.  It  will  happen 
usually  in  such  cases,  that  before  the  blow  or  other  act  which 
causes  death,  there  have  been  acts  of  violence  on  both  sides,— 
force  used  and  repelled  by  force,  the  blood  already  heated 
kindling  afresh  at  every  blow,  until  in  the  tumult  of  passion 
the  voice  of  reason  is  not  heard.  Suppose  the  public  servant 
or  other  person  acting  in  obedience  to  the  law  is  met  with 
violence  and  in  opposition  to  such  violence  and  in  self-defence 
strikes  a  blow,  and  then  is  killed  by  his  antagonist.  The  blow 
struck  under  such  circumstances  should  be  regarded  as  struck 


HOMICIDE    AFTER   PROVOCATION.  253 

not  vindicatively  or  by  way  of  punishment,  or  for  the  purpose  of 
offence,  but  in  self-defence  only,  and  to  diminish  the  violence 
which  is  unlawfully  brought  into  operation  against  him.  It 
cannot  therefore  be  cmy  such  provocation  as  will  mitigate 
murder. 

But  if  the  public  servant  or  other  person  uses  a  force  or 
violence  unnecessary,  and  not  justified  by  law,  this  provision 
will  not  operate  to  prevent  due  weight  being  given  to  such 
acts  by  the  Court  in  considering  the  question  of  fact, — that  is 
to  say  in  considering  whether  the  provocation  was  not  grave 
enough  to  prevent  the  offence  from  amounting  to  murder.  Thus, 
if  a  police  officer  make  an  arrest  not  in  a  manner  authorized  by 
law,  but  violently  by  knocking  down  the  person  to  be  arrested, 
provocation  so  given  would  not  come  within  this  proviso. 

It  will  be  remembered  that  acts  "  not  strictly  justifiable  by 
law''  (if  they  do  not  cause  the  apprehension  of  death  or  of 
grievous  hurt),  done  in  good  faith,  and  under  colour  of  office 
by  or  by  direction  of  a  public  servant,  are  protected  to  this 
extent  that  there  is  no  right  of  private  defence  against  them. 
(See  Section  99.)  But  such  acts  seem  not  to  fall  within  the 
terms  of  this  proviso  concerning  provocation. 

Nothing  is  expressed  in  the  proviso  to  limit  its  operation  to 
cases  in  which  a  person  has  notice  or  knowledge  of  the  charac- 
ter of  his  opponent,  i,  e.  that  he  is  a  public  servant,  or  that  he 
is  a  person  acting  under  the  authority  of  a  public  servant,  or 
under  some  lawful  power  or  authority.  When  the  provocation 
is  given  by  a  private  person  acting  in  obedience  to  law,  it  may 
be  that  a  knowledge  of  the  law  must  be  presumed  and  that 
notice  of  his  authority  is  not  requisite.  But  when  the  provo- 
cation proceeds  from  a  thing  done  by,  or  by  direction  of,  a  public 
servant,  it  seems  just  to  hold  that  (as  in  other  analagous  cases, 
see  Sections  99,  183,  &c.)  someknowledge,  or  reason  for  belief, 
that  the  person  resisted  fills  a  particular  character  or  office, 
is  essential. 

Thirdly.    That  the  provocation  is  not  given  by 


254  CHAPTER  XVI. 

anything  done  in  the  lawful  exercise  of  the  right  of 
private  defence. 

{e)  A  attempts  to  pull  Z*8  nose.  Z,  in  the  exercise  of  the  right 
of  private  defence,  lays  hold  of  A  to  prevent  him  from  doing  so.  A  is 
moved  to  sudden  and  violent  passion  in  consequence,  and  kills  Z. 
This  is  murder,  inasmuch  as  the  provocation  was  given  by  a  thing 
done  in  the  exercise  of  the  right  of  private  defence. 

The  Chapter  of  General  Exceptions  defines,  with  such  preci- 
sion as  the  subject  admits  of,  the  limits  of  the  right  of  private 
defence,  and  in  what  cases  it  extends  to  causing  death.  (See 
Sections  96 — 106.)  The  right  being  thus  given  by  law,  the 
case  is  withdrawn  from  the  operation  of  the  present  exception. 
When  the  acts  which  are  supposed  to  provoke,  are  acts  of 
resistance  which  the  law  allows,  it  cannot  also  allow  such  resis- 
tance to  be  regarded  as  a  provocation  sufficient  to  mitigate  or 
excuse  the  commission  of  homicide.  Suppose  a  police  officer 
in  the  lawful  exercise  of  his  powers  arrests  A  who,  not  know- 
ing and  not  having  reason  to  know  his  intention,  resists. the 
arrest  but  without  needless  violence.  This  resistance  is  as 
yet  lawful  in  respect  of  its  falling  within  the  Umits  of  A's 
right  of  self-defence.  (See  Section  99.)  But  suppose  further  that 
the  officer  repels  the  force  used  against  him  by  greater  force, 
and  is  thereupon  killed  by  A.  (See  Section  300.)  Here  A's 
conduct  may  be  wholly  justifiable  :  or  if  he  has  exceeded  the 
limits  of  self-defence  and  has  committed  culpable  homicide, 
his  offence  may  admit  of  mitigation  by  reason  of  the  provoca- 
tion given,  (see  the  next  Exception).  But  if  the  officer,  excited 
by  the  provocation  received  from  A,  had  killed  him,  he  would 
be  entitled  to  no  benefit  from  this  first  Exception. 

Exception  2.  Culpahle  homicide  is  not  murder  if  the 
ofltender  in  the  exercise,  in  good  faith,  of  the  right  of 
private  defence  of  person  or  property,  exceeds  the 
povrer  given  to  him  by  law  and  causes  the  death  of  the 
person  against  whom  he  is  exercising  such  right  of 
defence  without  premeditation,  and  without  any  in- 
tention of  doing  more  harm  than  is  necessary  for  the 
purpose  of  such  defence. 


HOMICIDE   IN   SELF-DEFENCE.  255 

Illustration, 

Z  attempts  to  horsewhip  A,  not  in  such  a  manner  as  to  cause 
grievous  hurt  to  A.  A  draws  out  a  pistol.  Z  persists  in  the  assault. 
A,  helieving  in  good  faith  that  he  can  by  no  other  means  prevent 
himself  from  being  horsewhipped,  shoots  Z  dead.  A  has' not  committed 
murder,  but  only  culpable  homicide. 

This  Exception  applies  where  death  is  caused  by  an  act 
which  is  done  in  the  exercise  of  the  right  of  private  defence, 
but  which  is  not  a  lawful  act,  because  it  exceeds  the  limits 
assigned  by  law  to  that  right. 

The  law  in  certain  cases  allows  a  man  to  canse  the  death 
of  another  man  in  self-defence.  In  these  cases  no  offence  is 
committed,  and  there  can  of  course  arise  no  question  as  to  the 
culpability  of  the  homicide.  In  other  cases,  the  law  limits  the 
right  of  private  defence  to  the  causing  of  any  harm  other  than 
death.  It  is  with  reference  to  such  cases  that  this  Exception 
must  be  considered ;  for  it  applies  only  to  homicides  caused 
by  an  excessive  and  unjustifiable  exercise  of  this  limited  right 
of  private  defence.  The  tendency  of  this  provision  is  to  favour 
persons  who  have  been  led  in  an  energetic  exercise  of  the  right 
of  defence  to  step  beyond  the  prescribed  line. 

This  exception  is  closely  connected  with  the  law  of  private  de- 
fence, and  must  necessarily  partake  of  the  imperfections  of  that 
law.  The  Indian  Law  Commissioners  observe,  ^^  Wherever 
the  limits  of  the  right  of  private  defence  may  be  placed,  and 
with  whatever  degree  of  accuracy  they  may  be  marked,  we  are 
inclined  to  think  that  it  will  always  be  expedient  to  make  a 
separation  between  murder  and  culpablehomicide  in  self-defence. 

''  The  chief  reason  for  making  this  separation  is  that  the  law 
itself  invites  men  to  the  very  verge  of  the  crime  which  we  have 
designated  as  culpable  homicide  in  defence.  It  prohibits  such 
homicide  indeed.  But  it  authorizes  acts  which  lie  very  near 
to  such  homicide.  And  this  circumstance  we  think  greatly 
mitigates  the  guilt  of  such  homicide.  That  a  man  who  deli- 
berately kills  another  in  order  to  prevent  that  other  from  pull- 
ing his  nose  should  be  allowed  to  go  absolutely  unpunished 
would  be  most  dangerous.     The  law  punishes  and  ought  to 


256  CHAPTER  XVI. 

punish  such  killiug.  But  we  cannot  think  that  the  law  ought 
to  punish  such  killing  as  murder.  For  the  law  itself  has  en- 
couraged the  slayer  to  inflict  on  the  assailant  any  harm  short 
of  death  which  may  be  necessary  for  the  purpose  of  repelling 
the  outrage,  to  give  the  assailant  a  cut  with  a  knife  across  the 
fingers,  which  may  render  his  right  hand  useless  to  him  for  life, 
or  to  hurl  him  downstairs  with  such  force  as  to  break  his  leg. 
And  it  seems  difficult  to  conceive  that  circumstances  which 
would  be  a  full  justification  of  any  violence  short  of  homicide 
should  not  be  a  mitigation  of  the  guilt  of  homicide.  That  a 
man  should  be  merely  exercising  right  by  fracturing  the  skull 
and  knocking  out  the  eye  of  an  assailant,  and  should  be  guilty 
of  the  highest  crime  in  the  Code  if  he  kills  the  same  assailant, 
that  there  should  be  only  a  single  step  between  perfect  inno- 
cence and  murder,  between  perfect  impunity  and  liability  to 
capital  punishment,  seems  unreasonable.  In  a  case  in  which 
the  law  itself  empowers  an  individual  to  inflict  any  harm  short 
of  death,  it  ought  hardly,  we  think,  to  visit  him  with  the  high- 
est punishment  if  he  inflicts  death/' 

'^  It  is  to  be  considered  also  that  the  line  between  those  ag- 
gressions which  it  is  lawful  to  repel  by  killing,  and  those  which 
it  is  not  lawful  so  to  repel,  is  in  our  Code,  and  must  be  in  every 
Code,  to  a  great  extent  an  arbitrary  line,  and  that  many  indivi- 
dual cases  will  fall  on  one  side  of  that  line  which,  if  we  had 
framed  the  law  with  a  view  to  those  cases  alone,  we  should 
place  on  the  other.  Thus  to  allow  a  man  to  kill,  if  he  has  no 
other  means  of  preventing  an  incendiary  from  burning  a  house  : 
and  we  do  not  allow  him  to  kill  for  the  purpose  of  preventing 
the  commission  of  a  simple  theft.  But  a  house  may  be  a 
wretched  heap  of  mats  and  thatch,  propped  by  a  few  bamboos, 
and  not  worth  altogether  twenty  Rupees.  A  simple  theft  may 
deprive  a  man  of  a  pocket-book  which  contains  bills  to  a  great 
amount,  the  savings  of  a  long  and  laborious  life,  the  sole 
dependence  of  a  large  family.  That  in  these  cases  the  man  who 
kills  the  incendiary  should  be  pronounced  guiltless  of  any 
offence,  and  that  the  man  who  kills  the  thief  should  bo  sen- 


HOMICIDE   IN    SELF-DEFENCE.  257 

tenced  to  the  gallows^  or  if  he  is  treated  with  the  utmost  lenity 
whioh  the  Courts  can  show,  to  perpetual  transportation  or  im* 
prisonment,  would  be  generally  condemned  as  a  shocking  in- 
justice. We  are  therefore  clearly  of  opinion  that  the  oflFence 
which  we  have  designated  as  culpable  homicide  in  defence, 
ought  to  be  distinguished  from  murder  in  such  a  manner  that 
the  Courts  may  have  it  in  their  power  to  inflict  a  slight  or  a 
merely  nominal  punishment  on  acts  which,  though  not  within 
the  letter  of  the  law  which  authorizes  killing  in  self-defence, 
are  yet  within  the  reason  of  that  law.'' 

There  must  be  a  fit  occasion  for  the  exercise  of  the  right 
before  any  question  can  arise  under  this  Exception.  Suppose 
a  man  having  no  pretence  for  so  acting,  enters  the  house  of 
another  against  his  will  and  refuses  to  quit,  whereupon  the 
owner,  using  no  force  or  violence  beyond  what  the  occasion 
calls  for,  proceeds  to  eject  him.  If  the  intruder  resists  and  so 
causes  the  death  of  the  owner  of  the  house,  the  homicide  is  not 
extenuated  by  this  Exception,  for  the  intruder's  acts  were  not 
done  in  the  exercise  of  any  right  or  lawful  power,  but  were 
wholly  illegal.  On  the  other  hand,  if  under  similar  circumstances 
the  owner  of  the  house  used  unnecessary  violence  to  the  trespas- 
ser and  thereby  caused  his  death,  this  Exception  would  be 
applicable. 

The  following  cases  will  further  illustrate  the  Exception.  A, 
finding  B  plucking  stakes  from  his  hedge  or  trampling  on  his 
crops,  deliberately  fires  a  gun  at  him,  or  uses  a  deadly  weapon 
to  punish  him .  This  degree  of  violence  is  not  justifiable  (see 
Section  108).  And  B,  notwithstanding  his  wrongful  act,  may 
protect  himself  and  his  life  against  it.  The  right  of  defence 
under  such  circumstances  arises  to  him,  and  he  may  repel  force 
by  force.  And  should  he  cause  A's  death,  the  homicide  will  be 
mitigated  under  the  present  Exception. 

Suppose  a  parent,  master,  guardian,  &o.,  chastises  with  great 

severity,  in  a  cruel  and  unusual  manner,  his  servant,  pupil,  &c., 

and  the  latter  resents  the  act  and  causes  death.    He  may  claim 

the  benefit  of  this  Exception.  For  a  power  lawful  within  certain 

2  L 


858  CHAPTER  XVI. 

limits  may,  if  exeroised  oppresBively,  be  resisted  by  the  sufferer  : 
and  it,  in  defence  of  himself  against  oppression^  he  canaes  death 
under  circnmstances  which,  because  of  the  excess  of  force,  are 
not  justifiable,  his  offence  may  still  be  entitled  to  mitigation. 

This  Exception  like  the  preceding  one  is  not  to  be  made  a 
cloak  for  premeditated  crime.  If  A  strikes  B,  intending  and 
foreseeing  that  B  will  resent  it  in  snoh  a  mode  as  to  justify  A 
in  resorting  to  self-defence,  under  cover  of  which  he  designs  to 
take  B's  life,  this  Exception  does  not  apply.  Nor  does  it  where 
great  violence  is  resorted  to  and  death  is  thereby  caused  upon 
a  trivial  occasion. 

It  is  enacted  by  one  of  the  General  Exceptions  (Section  79) 
that  nothing  is  an  offence  which  is  done  by  a  person  who  by 
reason  of  a  mistake  of  fact  believes  himself  to  be  justified  by 
law  in  what  he  does,  *  There  may,  it  aeems,  be  cases  of  homi« 
pide  in  the  exercise  of  the  right  of  private  defence  to  whicU 
this  General  Jlxception  rather  than  the  particular  Exceptiou 
liow  under  consideration  is  applicable.  A  person  who  in  good 
faith  exceeds  the  strict  limits  of  the  right  of  self-defence, 
pnder  a  mistake  of  fact  as  to  the  degree  of  force  which  is 
opposed  to  him  and  what  is  requisite  to  repel  such  force,  is 
probably  excused  under  the  79th  Section. 

Exception  3.  Culpable  homicide  is  not  murder  if 
the  offender,  being  a  public  servant  or  aiding  a  public 
servant  acting  for  the  advancement  of  public  justice, 
exceeds  the  powers  given  to  him  by  law  and  causes 
death  by  doing  an  act  which  he,  in  good  faith,  belieyes 
to  be  lawful  and  necessary  for  the  due  discharge  of 
his  duty  as  such  public  servant  and  without  ill-will 
toward^s  the  person  whose  death  is  caused. 

This  Exception  extenuates  certain  acts  of  public  servants  in 
excess  of  their  lawful  powers.  Death  caused  by  such  acts, — done 
in  good  faith  and  ifithottt  ill-will,  for  the  advancement  of  public 
justice, — is  excitsed  because  it  would  be  unjust  to  hold  that  thoa^ 
persons  upon  whom  (he  law  imposes  certain  duties  which  they 
lure  bound  to  discharge,  are  to  be  punished  as  niarderers 


HOMICIDE   BY  PUBLIC   SERVANTS.  259 

because  they  may  have  undesignedly  or   incaatioasly  over- 
stepped the  limits  of  their  authority. 

"  Public  servant  acting  for  the  advancement  of  justice.'* 
The  explanation  of  the  words  "  public  servant*'  (see  Section 
21)  makes  the  expression  to  include  a  large  class  of  persons^  of 
whom  those  only  are  here  included  who  act  "  for  the  advance- 
ment of  justice/'  Without  attempting  to  enumerate  who  may 
come  within  these  terms  it  seems  clear  that  officers  of  polioe,both 
civil  and  military, — ^ministerial  officers  of  Courts  of  Justice, 
jailers,  &c.,  acting  in  the  execution  of  their  respective  duties  are 
within  its  meaning.  On  the  other  hand,  persons  invested  with 
rights  to  collect  and  distribute  the  revenue  of  the  State,  customs 
officers,  revenue  and  survey  officers,  the  Municipal  Commission- 
ers in  the  Presidency  Towns  and  their  servants,  &c.  are  not, 
yrhi\e  executing  their prindpal  and  appropriate  duties,  included. 

This  Exception  will  be  applicable  to  cases  in  which  peace 
officers  cause  death  either  in  keeping  the  peace  or  in  executing 
criminal  process.  In  these  and  all  other  cases  to  which  the 
Exception  applies,  the  public  servant  will  be  regarded  as  acting 
in  advancement  of  justice,  not  only  while  actually  engaged  in 
his  duty  of  keeping  the  peace,  suppressing  an  aflFray,  serving 
process,  &c.,  but  also  while  going  to  and  returning  from  the  place 
to  which  his  duty  calls  him.  Therefore  if  he  comes  to  do  his 
duty  and,  meeting  with  opposition  on  the  way,  uses  a  degree 
of  violence  to  overcome  it,  beyond  that  which  the  law  permits, 
and  thereby  causes  death, — his  offence  will  not  amount  to  mur-* 
der  if  he  acts  in  good  faith  according  to  his  view  ^  of  what  is 
lawful  and  necessary. 

"  Exceeds  the  powers  given  to  hira  by  law,  &c."  No  case 
arises  for  the  operation  of  this  Exception,  when  the  conduct  of 
the  public  servant  is  wholly  illegal  and  unauthorized.  For 
although  the  law  is  not  extreme  to  mark  with  severity  what 
has  been  honestly  done  by  a  public  servant  in  the  discharge  of 
his  duties,  yet  if  he  take  on  himself  to  act  for  the  advancement 
of  justice  without  any  colour  of  authority,  or  grossly  in  excess 
of  his  lawful  powers,  he  forfeits  the  protection  of  the  Exception. 
2  L  2 


260  CHAPTER  XVI. 

It  mast  be  ascertained  carefully  in  each  case  what  are  the 
powers  and  privileges  which  the  public  servant  possesses,  and 
what  is  the  nature  of  his  conduct  in  the  matter  wherein  he  has 
exceeded  those  powers.  The  following  Sections  of  the  Code 
should  also  be  consulted.     Sections  52,  76 — 79  and  99. 

A  has  a  warrant  for  the  arrest  of  B,  who  runs  away  to  avoid 
the  arrest.  He  is  pursued  by  A,  who  trips  him  up  or  strikes 
him  to  prevent  his  escape,  and  kills  him.  If  in  respect  of 
this  excess,  A  should  be  deemed  to  have  committed  cul- 
pable homicide,  this  Exception  will  extenuate  his  offence  so 
far  as  to  prevent  it  amounting  to  murder.  But  suppose  a 
defect,  or  irregularity  in  the  process,  or  a  mistake  in  good  faith 
by  which  B  is  taken  for  C,  the  person  really  named  in  the  war- 
rant. In  such  a  case,  the  offence  of  A  is,  it  is  conceived,  not  the 
less  within  the  present  Exception.  For  although  his  lawful  an* 
thority,  so  far  as  it  is  derived  from  the  warrant,  fails  him,  yet  he 
has  the  protection  of  certain  provisions  (see  Sections  76  and  78) 
which  give  to  his  act  sufficient  le^al  effect  or  validity  to  prevent 
this  excess  from  being  punished  as  if  he  had  committed  murder 
or  from  being  punished  otherwise  than  under  the  present 
Section. 

"Without  ill-will  towards  the  person  whose  death  is  caused.'' 
This  expression  seems  intended,  like  others  in  former  exceptionSj 
to  guard  against  the  application  of  the  exception  to  cases  in 
which  it  might  be  sought  to  use  it  to  cloak  such  acts  of  violence 
as  make  an  offender  really  a  murderer. 

Those  who  give  their  aid  to  public  servants  acting  for  the 
advancement  of  public  justice,  are  entitled  to  the  benefit  of  this 
exception. 

The  Explanation  of  the  words  "  good  faith''  should  be  referred 
to.     (See  Section  52). 

Exception  4.  Culpable  homicide  is  not  murder  if 
it  is  committed  without  premeditation  in  a  sudden 
fight,  in  the  heat  of  passion,  upon  a  sudden  quarrel, 
and  without  the  offender's  having  taken  undue  ad- 
vantage or  acted  in  a  cruel  or  unusual  manner. 


HOMICIDE   IN   A   SUDDEN   FIGHT.  261 

Explomation.  It  is  immaterial  in  such  cases  which 
party  offers  the  provocation  or  commits  the  first 
assault. 

This  Explanation  directs  the  attention  to  the  distinction 
between  the  present  and  some  of  the  preceding  Exceptions. 
In  many  cases  of  mutual  contest^  homicide  caused  by  the  person 
who  received  the  first  blow  or  the  provocation,  would,  under 
those  Exceptions,  have  been  extenuated :  but  if  that  person's 
death  had  been  caused  by  his  opponent,  the  offence  would  not 
have  been  within  reach  of  any  mitigating  provision.  The 
present  Exception  is  meant  to  apply  to  cases  in  which,  notwith- 
standing that  a  blow  may  have  been  struck  or  some  provo- 
cation given  in  the  origin  of  the  dispute,— or  in  whatsoever  way 
the  quarrel  may  have  originated, — yet  the  subsequent  conduct  of 
both  parties  puts  them  in  respect  of  guilt  upon  an  equal  footing. 
For  there  is  a  mutual  combat,  and  blows  on  each  side :  and 
however  slight  the  first  blow  or  provocation,  every  fresh  blow 
becomes  a  fresh  provocation.  The  blood  already  heated  warms 
at  every  subsequent  stroke,  and  the  voice  of  reason  is  heard  on 
neither  side  in  the  heat  of  passion.  Under  such  circumstances 
there  cannot  be  much  room  for  discriminating  between  the  re- 
spective degrees  of  blame  with  reference  to  the  state  of  things 
at  the  commencement  of  the  fray. 

In  such  cases,  words  or  gestures  of  reproach,  of  contempt, 
&c.  or  some  act  of  provocation  of  no  serious  kind,  lead  to  blows, 
and  then  to  mutual  combat  which  is  sudden  and  without  pre- 
conceived intention.  The  resentment  generally  is  of  such  a  kind 
as  to  bear  some  proportion  in  the  degree  of  it,  and  in  the  wea- 
pons which  are  used,  to  the  provocation.  A  sudden  quarrel 
excites  the  anger  of  the  persons  engaged  in  it.  In  the  heat  of 
passion  blows  are  interchanged  (being  given  and  taken),  and 
in  this  sudden  and  unpremeditated  fight,  death  is  caused. 

*'  Sudden  quarreF'  and  "  sudden  fight.'*  The  stress  which 
is  laid  upon  this  is  to  be  remarked.  The  degree  or  kind  of 
provocation  does  not  so  much  enter  into  consideration  here  as 


262  CHAPTER  XVI. 

the  saddenness  of  the  dispute  and  of  the  fight  which  follows. 
The  lapse  of  time  between  the  quarrel  and  the  fight  is  there-^ 
fore  a  very  important  consideration. 

It  may  be  material  also  to  inquire  what  were  the  previous 
relations  between  the  disputants.  If  the  persons  were  strangers 
to  each  other,  until  the  time  of  quarrel,  and  have  no  previous 
cause  of  contention,  the  fight  will  probably  be  "  in  the  heat  of 
passion  upon  a  sudden  quarreP'  within  this  Exception.  Still 
more  so,  if  they  have  lived  previously  upon  terms  of  intimacy 
or  friendship,  and  no  cause  of  contention  has  arisen.  But  where 
there  has  been  an  old  quarrel  between  A  and  B,  the  Court 
should  narrowly  examine  the  circumstances  of  this  seemingly 
new  and  sudden  falling  out,  to  ascertain  that  it  is  not  really  the 
continuance  of  the  old  feud.  If  there  has  since  been  a  true 
reconciliation,  the  old  enmity  should  not  be  considered.  But  if 
the  circumstances  show  that  the  reconciliation  was  pretended  or 
counterfeit,  the  quarrel  cannot  be  held  "  sudden,'*  within  this 
Exception. 

The  following  illustration  shows  the  operations  of  the  Exoep* 
tion.  A  and  B,  having  no  previous  enmity  against  one  an- 
other, meet  and,  some  cause  of  dispute  arising,  quarrel  and 
fight  upon  the  spot.  If  death  ensues  in  fair  fight,  this  homicide 
does  not  amount  to  murder,  and  it  matters  not  who  gave  the 
first  blow  or  the  provocation.  But  if  they  quarrel  over  night 
and  agree  to  fight  next  day,  or  quarrel  in  the  morning  and 
agree  to  fight  in  the  afternoon,  however  sudden  the  quarrel, 
the  fight  is  not  sudden,  but  a  deliberate  act  previously  appoint- 
ed and  arranged,  and  the  homicide  will  be  murder. 

Upon  this  ground  the  causing  of  death  in  a  deliberate  duel 
cannot  fall  within  this  mitigating  exception.  In  duels  there  is 
usually  deliberate  fighting  in  cold  blood,  and  after  a  certain 
lapse  of  time  from  the  injury  done  or  the  cause  of  quarrel. 
Such  a  duel  cannot  be  called  a  sudden  fight  without  premedi- 
tation. Even  if  the  fighting  follows  immediately  upon  the 
quarrel,  or  so  quickly  after  it  that  the  heat  of  passion  has  not 
subsided,  a  duel  or  other  contest  with  deadly  weapons,  although 


HOMICIDE   IN   A   SUDDEN   FIGHT.  263 

foijght  suddenly  and  withont  premeditation^  woold  perhaps 
not  be  deemed  within  this  Exception. 

"  Without  the  offender's  having  taken  undue  advantage/* 
&c.  The  fight  must  be  a  fair  fight  as  well  as  a  sudden  one.  And 
it  cannot  be  so  unless  the  parties  stand  upon  some  footing 
of  equality  as  regards  arms^  bodily  strength^  and  preparedness 
for  the  combat.  Suppose  a  sudden  quarrel  between  a  powerful 
man^  with  arms  in  his  possession^  and  a  decrepit  person^  or  a 
defenceless  woman.  The  man  using  his  arms  against  such  op- 
ponents would  be  guilty  of  murder  if  he  caused  their  death. 

It  most  uotj  however^  be  supposed  that  the  exception  applies 
only  to  eases  in  which  each  party  to  the  combat  is  equally 
matched  in  point  of  muscular  strength^  skilly  arms^  &c.  For 
where  there  is  no  manifestly  gross  inequality,  minute  differences 
in  bodily  strength  or  in  other  particulars  should  not  be  deemed 
sufficient  to  remove  the  case  from  the  operation  of  this  Excep- 
tion. 

*'  Undue  advantage/'  may  consist  in  this  that  at  the  onset 
there  is  some  conduct  which  puts  the  combatants  upon  an 
unequal  footing.  A  attacks  B  suddenly  and  when  B's  back  is 
turned:  or  he  draws  his  sword  and  rushes  upon  B  without 
giving  him  time  or  opportunity  to  prepare.  In  such  cases^  the 
combat  does  not  begin  upon  an  equal  footing,  and  undue  ad- 
vantage is  taken  ;  and  this,  more  particularly  in  the  last  case, 
where  the  attack  is  made  with  a  dangerous  weapon.  Suppose 
the  contest  to  be  with  fists,  and  one  of  the  combatants  has 
concealed  in  his  possession  an  open  knife  and  causes  death  by 
wounds  from  this  knife.  He  gains  an  undue  advantage  and 
also  acts  in  a  cruel  manner.  If  the  combatants  begin  the  fight 
fairly,  but  one  of  them  being  worsted  seizes  some  deadly  wea- 
pon which  is  at  hand  and  uses  it  and  causes  death,  it  seems 
such  conduct  excludes  him  from  the  benefit  of  this  exception. 
In  such  a  case,  however,  it  may  be  that  the  excitement  of  passion 
or  fear  under  which  he  laboure  may  be  deemed  to  mitigate  his 
offence. 


264  CHAPTER  XVI. 

Suppose  two  persons  fight,  and  one  overpowers  the  other 
and  knocks  him  down,  and  then  strangles  him  with  a  rope. 
This  is  a  deliberate  act,  not  part  of  the  fight,  bnt  a  cruel  and 
unusual  proceeding,  which  cannot  be  extenuated. 

All  struggles  in  anger,  whether  by  fighting  with  or  without 
weapons,  by  wrestling,  or  by  any  other  mode,  may  be  offences. 
But  they  are  offences  of  very  different  degrees.  In  many  cases 
homicide  thus  caused  is  so  culpable,  as  to  deserve  a  very 
severe  punishment ;  but  in  other  cases,  a  slight  or  merely  no- 
minal punishment  may  suffice.  It  will  be  found  that  the  Courts 
have  it  in  their  power  to  punish  culpable  homicide  not  amount- 
ing to  murder,  with  sentences  ranging  from  transportation  for 
life  to  the  infliction  of  only  a  small  fine. 

Exception  5.  Culpable  homicide  is  not  murder 
when  the  person  whose  death  is  caused,  being  above 
the  age  of  eighteen  years,  suflFers  death  or  takes  the 
risk  of  death  with  his  own  consent. 

Hlv^tration. 

A,  by  instigation,  voluntarily  causes  Z,  a  person  under  eighteen 
years  of  age,  to  commit  suicide.  Here,  on  account  of  Z*s  youth,  he 
was  incapable  of  giving  consent  to  his  own  death.  A  has  therefore 
abetted  murder. 

The  case  supposed  in  this  illustration,  viz.  the  abetment  of 
suicide  committed  by  a  person  under  eighteen  years  of  age,  is 
one  of  the  ofiences  expressly  made  punishable  by  Section 
305.     . 

The  following  case  illustrates  this  Exception.  Z  a  Hindoo 
widow,  consents  to  be  burned  with  the  corpse  of  her  hus- 
band. A  kindles  the  pile.  Here,  if  Z  is  above  the  age  of 
eighteen  years,  A  has  committed  culpable  homicide,  not 
amounting  to  murder;  if  Z  is  under  that  age,  A  has  com- 
mitted murder. 

We  have  seen  that  a  person  above  the  age  of  eighteen  may 
lawfully  consent  to  sufier  any  harm  short  of  death  or  grievous 
hurt  (Section  87) .  According  to  the  present  Exception,  if  such 
a  person  consents  to  his  own  death,  the  homicide,  though  cul- 


HOMICIDE   BY  CONSENT.  265 

pable^  is  mitigated.*  The  law  in  these  two  places  has  been 
framed  on  the  principle  of  regarding  the  causing  of  harm  as 
warranted  by  the  sufferer's  intelligent  consent^  and  the  causing 
of  death  as  mitigated  by  the  like  consent  or  choice^  if  the  suf* 
ferer  is  a  person  of  ripe  age.  And  the  age  of  eighteen  years  has 
been  fixed  on^  as  what  might  reasonably  be  considered  to  be  a  ripe 
age.  The  consent  must  be  a  free  and  intelligent  consent  (see 
Section  90).  But  such  a  consent  cannot^  for  the  purpose  of 
bringing  a  case  within  this  Exception^  be  given  by  any  person 
who  is  not  above  eighteen  years  of  age.  Indeed  the  mere  fact 
of  a  person  even  above  that  age  consenting  to  be  killed^  would, 
except  under  very  unusual  circumstances,  indicate  a  morbid 
state  of  mind,  sufficient  to  raise  a  doubt  of  his  sanity. 

Suppose  the  consent  of  the  person  whose  death  is  caused, 
is  obtained  by  deception  or  concealment,  the  person  practising 


*  The  Indian  Law  Commissioners  in  support  of  the  distinction  drawn  between 
murder  and  culpable  homicide  by  consent,  obsenre :  **  It  appears  to  us  that  thia 
description  of  homicide  ought  to  be  punished,  but  that  it  ought  not  to  be  punish- 
ed so  seyerely  as  murder. Our  reasons  for  not  punishing  it  so  severely  as 

murder  are  Uiese.  In  the  first  place  the  motives  which  prompt  men  to  the  com- 
mission of  this  offenoe  are  generally  far  more  respectable  than  those  which  prompt 
men  to  the  commission  of  murder.  Sometimes  it  is  the  efiect  of  a  strong  sense  of 
religious  duty,  sometimes  of  a  strong  sense  of  honor,  not  un&equently  of  humani- 
ty. The  soldier  who,  at  the  entreaty  of  a  wounded  comrade,  puts  that  comrade 
out  of  pain,  the  firiend  who  supplies  laudanum  to  a  person  suffering  the  torment 
of  a  lingering  disease,  the  filled  man  who,  in  ancient  times,  held  out  the  sword 
that  his  master  might  faU  on  it,  the  high  bom  native  of  India  who  stabs  the 
females  of  his  family  at  their  own  entreaty  in  order  to  save  them  from  the  licen- 
tiousness of  a  band  of  marauders,  would,  except  in  Christian  societies,  scaroely  be 
thought  culpable,  and  even  in  Christian  societies,  would  not  be  regarded  by  the 
public,  and  ought  not  to  be  treated  by  the  law  as  aflsassinfl. 

"  Again,  this  crime  is  by  no  means  productive  of  so  much  evil  to  the  community 
as  murder.  One  evil  ingredient  of  the  utmost  importance  is  altogether  wanting 
to  the  offenoe  of  culpable  homicide  by  consent.  It  does  not  produce  general 
insecurity.  It  does  not  spread  terror  through  society.  When  we  punish  murder 
with  such  signal  severity  we  have  two  en<£  in  view.  One  end  is  that  people 
may  not  be  murdered.  Another  end  is  that  people  may  not  live  in  constant 
dread  of  being  murdered.  This  second  end  is  perhaps  the  more  important  of 
the  two.  For  if  assassination  were  lefb  unpunished  the  number  of  persona 
assassinated  would  probably  bear  a  veiy  small  proportion  to  the  whole  population. 
But  the  life  of  eveiy  human  being  would  be  passed  in  constant  anxiety  and  alarm. 
This  property  of  the  offence  of  murder  is  not  found  in  the  offenoe  of  voluntary 
culpable  homicide  by  consent.  Every  man  who  has  not  given  his  consent  to  be 
put  to  death  is  perfectly  certain  that  this  latter  offenoe  cannot  at  present  be 
committed  on  him,  and  that  it  never  will  be  committed,  unless  he  shall  first  be 
oonvinoed  that  it  is  his  interest  to  consent  to  it," 

2  H 


266  CHAPTER  XVI. 

such  deception^  cannot  avail  himself  of  the  consent  obtained  by 
such  means. 

A  person  labouring  under  some  disease  may  consent  to  "  take 
the  risk  of  death'^  by  undergoing  a  certain  treatment  of  the 
disease  which  he  knows  to  be  attended  by  considerable  danger 
to  his  life.  If  he  consents  to  such  treatment  at  the  hands  of  one 
who  professes  to  have  the  requisite  skill  and  knowledge^  but  who 
is  in  reality  grossly  ignorant,  and  who,  by  his  incompetency, 
causes  the  death  of  the  sufferer,  such  consent  will  not  bring  the 
case  under  this  Exception. 

And  the  Exception  will  perhaps  apply  to  others,  as  coachmen, 
pilots,  boatmen,  engine-drivers,  &c.,  under  certain  circum- 
stances. Thus  a  boatman  overcrowding  his  boat,  a  pilot  rashly 
navigating  a  vessel,  &c.,  and  thereby  causing  death,  will  come 
within  the  Exception, — ^if  the  person  whose  death  was  caused 
by  his  own  will  entered  the  crowded  boat,  or  consented  to  the 
pilot's  proceeding  to  sea  with  the  ship  in  a  dangerous  state 
of  wind,  tide,  or  weather.  In  these  and  similar  cases  of  mis- 
conduct and  want  of  skill,  consent  to  the  probable  risk  is  not 
to  be  implied,  unless  there  is  proof  of  the  knowledge  of  the  in- 
capacity or  want  of  skill.  The  mere  employment  of  such  a 
person  is  not  a  consent  to  suffer  whatever  his  gross  ignorance 
may  inflict. 

Cases  of  Suttee  must  be  considered  with  reference  to  the 
terms  of  this  Exception.  The  burning  of  a  Hindoo  widow  by 
her  own  consent  with  the  corpse  of  her  husband  is  by  existing 
laws,  which  were  enacted  upon  the  most  careful  and  solemn 
deliberation,  an  offence.  By  Regulation  XVII.  of  1829  of  the 
Bengal  Code,  copied  exactly  in  Regulation  I.  of  1830  of  Madras, 
and  followed  substantially  in  Regulation  XYI.  of  1830  of  Bom- 
bay, the  offence  is  declared  to  be  "  culpable  homicide,"  punish- 
able in  the  Presidencies  of  Bengal  and  Madras  by  fine,  or  by 
imprisonment,  or  by  both  fine  and  imprisonment  at  the  discre- 
tion of  the  Court ;  and  in  the  same  manner,  except  with  a  limit- 
ation of  imprisonment  to  ten  years,  in  the  Presidency  of  Bom- 
bay.   Under  this  Code,  those  who  directly  cause  the  death,  are 


HOMICIDE  BY   CONSENT.  267 

guilty  of  this  mitigated  kind  of  culpable  homicide,  if  the 
widow  being  above  eighteen  years  of  age,  chooses  or  consents 
to  die  :  and  those  who  instigate  or  aid  in  the  commission  of  this 
offence,  are  in  like  manner  guilty  as  abettors.  (See  the  Chap- 
ter of  Abetment.)  But  if  the  widow  is  under  that  age,  all  those 
concerned  in  the  offence  are  guilty  of  marder.  Whethev  the 
victim  is  a  young  child,  or  is  of  more  mature  age  and  intelli- 
gence, the  consent  of  such  a  person,  however,  freely  given,  does 
not  mitigate  the  offence  if  the  person  is  not  eighteen  years  old. 

Killing  in  a  duel,  according  ta  the- circumstances  of  the  parti- 
cular case^  may  be  culpable  homicide  amounting  to  murder,  or 
may  be  only  a  mitigated  kind  of  culpable  homicide.  The  Code 
makes  no  specifd  provision  respecting  the  way  in  which  fatal 
duels  are  to  be  dealt  with.  Offences  committed  in  that  way 
are  left  to  be  punished  under  the  general  law.  It  will  be  for 
the  judicial  administrators  of  the  law  to  apply  it  to  the  facts  of 
such  cases  as  shall  be  brought  before  them,,  having  regard  to 
the  classification  of  cases  which  the  law  has  adopted,  and  not 
to  such  a  consideration  as  whether  a  particular  case  is  or  is  not 
one  of  that  description  of  cases  cdled  duels,  a  class  unknown 
to  the  law. 

The  offence  of  causing  the  death  of  a  woman  with  child  in 
an  endeavour  to  procure  abortion,  when  the  woman  consents  ta 
take  the  risk  of  death,  is  an  offence  punishable  by  a  subsequent 
Section.  (See  Section  314).  A  gross  disregard  for  human  life 
is  an  ingredient  in  the  offence  of  murder;  but  consent,  whero- 
that  is  shown,  reduces  the  offence  to  culpable  homicide. 

Besides  the  several  kinds  of  culpable  homicide  alreiidy  men- 
tioned, there  are  other  homicides  which  either  are  in  no  degree 
blameworthy,  or  are  not  so  culpable  as  to  be  properly  included 
among  the  gradations  of  the  offence  of  culpable  homicide. 

These  descriptions  of  homicide  wiU  now  be  mentioned. 

1 .     Homicide  when  death  is  caused  by  pure  accident,by  an  ac* 
in  itself  innocent.   This  has  been  already  noticed  (see  page  222) .. 
2  M  2 


268  CHAPTER  XVI. 

2.  Homicide  when  death  is  accidentally  caused  by  a  person 
who  does  not  intend^  or  know  himself  to  be  likely^  to  caase  it^ 
bat  who  causes  it  while  committing  an  offence. 

According  to  the  Gode^  when  a  person  engaged  in  the  com- 
mission of  an  offence  causes  death  by  pure  accident^  he  will  suf- 
fer only  the  punishment  of  his  offence,  without  any  additional 
punishment  on  account  of  such  accidental  death.*     If  A  by 


*  The  Indian  Law  Comnnsffloners  eay :  "  It  may  be  proper  for  ns  to  offer  some 
arg^nments  in  defence  of  this  part  of  the  Code. 

**  It  will  be  admitted  that,  when  an  act  is  in  itself  innocent,  to  pmush  the 
person  who  does  it  because  bad  consequences  which  no  human  wisdom  could 
have  foreseen,  hare  followed  from  it  would  be  in  the  highest  degree  barbarous 
and  absurd. 

"  A  pUot  is  navigating  the  Hooghly  with  the  utmost  care  and  skill  $  he  directs 
the  yessel  against  a  sandbank,  which  has  been  recently  formed,  and  of  which 
the  existence  was  altogether  unknown  till  this  disaster,  Sereral  of  his  passengers 
are  consequently  drowned.  To  hang  the  pilot  as  a  murderer,  on  acooimt  of  this 
misfortune,  would  be  universally  allowed  to  be  an  act  of  atrocious  injustice. 
But  if  the  voyage  of  the  pilot  be  itself  a  high  offence,  ought  that  oircumstanoe 
alone  to  turn  his  misfortune  into  a  murder  ?  Suppose  that  he  is  engaged  in 
eonveyizig  an  offender  beyond  the  reach  of  justice,  that  he  has  kidnapped  some 
natives,  and  is  carrying  them  to  a  ship  which  is  to  convey  them  to  some  foreign 
slave  c^ooy,  that  he  is  vicrfating  the  laws  of  quarantine,  at  a  time  when  it  is  of 
the  highest  iiz^K)rtance  that  those  laws  E^onld  be  strictly  observed,  that  he  is 
carrying  supplies,  deserters,  and  intelligence  to  the  enemies  of  the  State.  The 
offence  of  such  a  pilot  ought  undoubtedly  to  be  severely  punished.  But  to  pro- 
nounce him  gialty  of  one  offence  because  a  misfortune  befell  him  while  he  was 
committing  another  offence,  to  pronounce  him  the  murderer  of  people  whose 
lives  he  never  meai^  to  endanger,  whom  he  was  doing  his  best  to  cany  safe  to 
their  desdnatiotii,  and  whose  death  has  be^n  purely  accidental,  is  surely  to  con- 
found all  the  boundaries  of  crime. 

**  Again,  A  heaps  ftiel  on  a  fire  not  in  an  imprudent  manner,  but  in  such  a  man* 
mer  tluit  the  chance  of  harm  is  not  worth  considering.  Unhappily,  the  flame 
Imrsts  out  more  violently  than  there  was  reason  to  expect.  At  Uie  same  moment 
a  sudden  puff  of  wind  blows  Z's  light  dress  towai^  the  hearth.  The  dress 
oatohes  fire,  and  2*  is  burnt  to  death.  To  punish  A  as  a  murderer  on  account  of 
such  an  unhappy  event  would  be  senseless  cruelty.  But  suppose  that  the  fdel 
which  caused  the  flame  to  burst  forth  vras  a  will,  which  A  was  fraudulently 
destroying.  Ought  this  circumstance  to  make  A  the  murderer  of  Z  ?  We  thii^ 
not.  For  the  fraudulent  destroying  of  wills  we  have  provided  in  other  parts  of 
the  Code,  pTmishments  which  we  think  sufficient*  If  not  sufficient,  they  ought  to 
be  made  so.  But  we  cannot  admit  that  Z's  death  has,  in  the  smallest  degree, 
aggravated  A's  offance,  or  oug^t  to  be  considered  in  apportioning  A's  punishment. 

«  To  punish  as  a  murderer  every  man  who,  while  committing  a  heinous  offence, 
causes  death  by  pure  misadventure,  is  a  course  which  evidently  adds  nothing 
to  the  security  of  human  life.  No  man  can  so  conduct  himself  as  to  make  it  abso^ 
lutely  certain  that  he  shall  not  be  so  imfortunato  as  to  cause  the  death  of  a  fellow- 
ereaturc  The  utmost  that  he  can  do  is  to  abstain  from  eveij  thing  which  is  at 
all  likely  to  cause  death..  No  fear  of  punishment  can  make  him  do  more  than 
this :  and  therefore  to  pum'sh  a  man  who  has  done  this  can  add  nothing  to  the 
security  of  human  Ufe.  The  only  good  effect  which  such  punishment  can  pro- 
duce ynH  be  to  deter  people  from  committing  any  of  those  offences  which  turn. 
into  murders  what  are  in.  themselves  mere  accidents.    It  is  in  fact  an^  addition  to 


HOMICIDE   BY  RASH  OH  NEGLIGENT  ACTS.      269 

shooting  at  a  fowl  with  intent  to  kill  and  steal  it^  kills  B  who  is 
behind  a  bnsh^  A  not  knowing  that  he  is  there ;  although  A  is 
engaged  in  the  commission  of  an  offence  and  causes  death  while 
so  engaged^  he  is  not  goilty  of  culpable  homicide^  as  he  did  not 
intend  to  kill  B^  or  to  cause  death  by  doing  an  act  that  he 
knew  to  be  likely  to  cause  death.  The  rule  is  the  same  whe- 
ther the  minor  offence  is  an  offence  against  person  or  against 
property,  or  whatever  may  be  its  nature :  the  intention  to  com- 
mit such  minor  offence  is  not  allowed  in  any  case  by  reason  of 
a  purely  accidental  consequence  to  be  deemed  equivalent 
penally  to  the  voluntary  causing  of  death. 

3.  Homicide  when  death  is  caused  rashly  or  negligently  by 
a  person,  whether  he  is  at  the  time  engaged  in  the  commission  of 
an  offence,  or  is  doing  an  act  in  itself  innocent.  Such  homicides, 
like  those  last  mentioned  are  not  '^  voluntary,'^  for  in  these  also 
a  person  causes  death  which  he  did  not  intend  to  cause  or 
know  himself  to  be  likely  to  cause.  A  person  who  does  any  act 
60  rashly  or  negligently  as  to  endanger  human  life  is  made 
punishable  specifically  for  this  offence  by  various  clauses  of  the 
Code  (see  Chapter  XIY.  Offences  affecting  the  Public  Health, 


the  pmiiBlmieiiti  oi  those  offences,  oiA  it  is  an  addition  made  in  the  yeiy  worst 
waj.  For  example,  hundreds  of  persons  in  some  great  cities  are  in  the  habit 
of  picking  pockets.  They  know  that  they  are  guilty  of  a  great  offence.  But 
it  has  never  occurred  to  one  of  them,  nor  would  it  occur  to  any  rational  man, 
that  they  are  gm\ty  of  an  offence  which  endangers  life.  Unhf^pily  one  of 
these  hundreds  attempts  to  take  the  purse  of  a  gentleman  who  has  a  loaded 
pistol  in  his  pocket.  The  thief  touches  the  trigger:  the  pistol  goes  off:  the 
gentleman  is  shot  dead.  To  treat  the  case  of  this  pickpocket  differently  from 
that  of  the  numerous  pickpockets  who  steal  under  exactly  the  same  circum- 
stances,  with  exactly  Uie  same  intentions,  with  no  less  risk  of  causing  death, 
with  no  greater  care  to  avoid  causing  death, — ^to  send  them  to  the  house  of  cor- 
rection aa  thieves^  and  him  to  the  gallows  as  a  murderer, — appears  to  us  an  un- 
reasonable course.  If  the  punishment  for  stealing  from  the  person  be  too  light, 
let  it  be  increased,  and  let  the  increase  &11  alike  on  all  the  offenders.  Surely  the 
worst  mode  of  increasing  the  punishment  of  an  offence  is  to  provide  that,  besides 
the  ordinary  punishment,  every  offender  shall  run  an  exceedingly  small  risk  of 
being  hanged.  The  more  nearly  the  amount  of  punishment  can  be  reduced  to  a 
certainty  Sie  better.  But  if  chance  is  to  be  admitted,  there  are  better  ways  of 
admitting  it.  It  would  be  a  less  capricious,  and  therefore  a  more  salutary  course 
to  provide  that  eveiy  fiftieth  or  eveiy  hundredth  thief  selected  by  lot  should  be 
hanged,  than  to  provide  that  every  thief  should  be  hanged  who,  while  engaged  in 
stealing  should  meet  with  an  unforseen  misfortune  such  as  might  have  befallen 
the  most  virtuous  man  while  performing  the  most  virtuous  action." 


270  CHAPTER  XVI. 

Safety,  Ac.  and  Sections  336, 337, 338  of  the  present  Chapter). 
If  his  rash  or  negligent  act  results  in  the  death  of  any  in- 
dividual, under  such  circumstances  that  he  may  be  said  to 
have  caused  death  without  either  intending  or  thinking  it  like- 
ly that  he  would  cause  death,  he  will  probably  still  be  punish- 
able only  under  the  clauses  above  referred  to.  For  the  Code 
appears  to  contain  no  provision  for  the  punishment,  as  a  distinct 
oflFence,  of  the  involuntary  causing  of  death  by  rashness  or 
negligence.  If  the  act  is  not  merely  a  rash  or  negligent  act 
causing  death  involuntarily,  but  an  act  which  is,  according  to 
Section  300  (Clause  4),  "so  imminently  dangerous  that  it 
must  in  all  probability  cause  death,  or  such  bodily  injury  as  is 
likely  to  cause  death,^^  or  if  it  is  an  act  done  voluntarily,  the 
homicide  will  be,  according  to  its  circumstances,  murder  or  one 
of  the  lesser  kinds  of  culpable  homicide  which  have  been  provid- 
ed for  by  Sections  299  and  300. 

301.     If  a  person,  by  doing  any  thing  which  he  in- 
tends or  Imows  to  be  likely  to 
inT^^'l^^'^t^l^S^n    cause  death,  commits  culpable 
fe  w^i^&n^e'r"  """"^"^    homicide  by  causing  the  death 

of  any  person  whose  death  he 
neither  intends  nor  knows  himself  to  he  likely  to 
cause,  the  culpable  homicide  tjommitted  by  the  offend- 
er is  of  the  description  of  which  it  would  have  been 
if  he  had  caused  the  death  of  the  person  whose  death 
he  intended  or  knew  himself  to  be  likely  to  cause. 

The  definition  of  culpable  homicide  makes  the  offence  to 
consist  in  death  caused  by  an  act  done  with  a  certain  intention 
or  knowledge.  If  homicide  is  the  result,  it  is  sufficient,  for 
it  is  not  a  part  of  the  definition  that  the  death  caused  should 
be  the  death  of  the  person  whose  life  is  aimed  at.  Whether 
the  offender  has  succeeded  or  been  thwarted  as  to  the  particu- 
lar victim,  he  has  occasioned  a  loss  of  human  life,  and  the  State 
is  as  much  interested  in  punishing  his  offence  as  if  he  had 
caused  the  death  of  the  person  he  meant  to  kill.  Where  a 
blow  aimed  at  one  person  lights  upon  another  and  kills  him^ 


MURDER.  271 

this^  in  a  loose  way  of  speaking  may  be  called  accidental  with 
regard  to  the  person  who  is  killed  by  a  blow  not  intended  for 
him ; — ^but  according  to  law,  if  it  appears  that  the  injury  intend- 
ed to  A,  be  it  by  poison,  blow,  or  any  other  means  of  death  would 
have  amounted  to  murder,  supposing  him  to  have  been  killed  by 
it,  it  will  amount  to  the  same  oflTence  if  B  happens  to  fall  by  the 
same  means.  On  the  other  hand,  if  the  blow  intended  against 
A  and  lighting  on  B  arose  from  a  sudden  transport  of  passion 
which,  in  case  A  had  died  by  it,  would  have  reduced  the  offence 
to  culpable  homicide  not  amounting  to  murder,  the  fact  will  ad- 
mit of  the  same  alleviation  if  B  should  happen  to  fall  by  it.  The 
culpable  homicide  actually  committed  "  is  of  the  description  of 
which  it  would  have  been'^  if  the  blow  had  caused  A's  death. 

So  where  two  persons  meet  to  fight  a  deliberate  duel,  and  a 
stranger  comes  to  part  them  and  is  killed  accidentally,  so  to  say 
by  one  of  them,  this  will  be  a  homicide  of  the  same  description 
as  if  the  person  killing  had  caused  the  death  of  his  adversary  in 
the  duel. 

302.  Whoever  commits  murder  shall  be  pimished 

PuniahmentformurdT.  T*^./^^*^,'    Or  transportation 

for  Me,  and  shall  also  be  liable 
to  fine. 

The  Code  does  not,  by  its  definitions,  distinguish  between 
different  degrees  of  murder.  But  the  Courts  in  awarding  the 
punishment  of  this  offence,  may  discriminate  between  a  wilful, 
deliberate,  and  premeditated  killing,  as  where  the  murder  is 
committed  by  poison  or  by  lying  in  wait,  &c.,  and  murder 
which  is  committed  with  less  deliberation  or  premeditation. 

303.  Whoever,  being  under  sentence  of  transporta- 

Pnniahment  for  murder  by      tiOU  for  life,  COmmits   murdcr, 

a  life  convict.  gj^gll  be  puuishcd  with  death. 

304.  Whoever  commits   culpable  homicide,   not 

amoimting  to  murder,  shall  be 

Punishment    for    culpable  •  i_    j  \. •x'l    x  ^  j.» 

homicide  not  amounting  to  punisnea  witii  transportation 
'^^^^^  for  life,   or  imprisonment  of 

either  description  for  a  term  which  may  extend  to  ten 


272  CHAPTER  xvr. 

years,  and  shall  also  be  liable  to  fine,  if  the  act  by 
which  the  death  is  caused  is  done  with  the  intention 
of  causing  death  or  of  causing  such  bodily  injury  as 
is  likely  to  cause  death;  or  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to  ten 
years,  or  with  fine,  or  with  both,  if  the  act  is  done 
with  the  knowledge  that  it  is  likely  to  cause  death, 
but  without  any  intention  to  cause  death  or  to  cause 
such  bodily  injury  as  is  likely  to  cause  death. 

A  great  latitude  of  discretion  is  given  to  the  jadge  in  ap- 
portioning the  punishment  of  culpable  homicide  when  it  does 
not  amount  to  murder;  for  he  is  empowered  to  pass  any 
sentence  ranging  from  transportation  for  life  to  a  small  fine. 
In  general^  the  Code  makes  no  distinction,  either  in  its 
definitions  or  penal  provisions,  between  cases  in  which  a 
man  causes  an  effect  designedly,  and  cases  in  which  he  causes 
it  with  a  knowledge  that  he  is  likely  to  cause  it.  But  this 
Section  awards  a  more  severe  punishment  to -culpable  homicides 
in  which  the  act  causing  death  is  done  intentionally  for  the 
purpose  of  causing  death,  than  it  does  to  those  homicides  in- 
which  the  act  is  done  with  the  knowledge  that  is  likely  to  cause 
death,  but  without  intention  to  cause  it. 

305.  If  any  person  under  eighteen  years  of  age. 
Abetment  of  suicide  of  chud    ^uy  insauc  pcrsou,  any  deliri- 

or  insane  person.  ^^g  persou,  any  idiot,  or  any 

person  in  a  state  of  intoxication  commits  suicide, 
whoever  abets  the  commission  of  such  suicide  shall  be 
punished  with  death  or  transportation  for  life,  or  im- 
prisonment for  a  term  not  exceeding  ten  years,  and 
shall  also  be  liable  to  fine. 

306.  If  any  person  commits  suicide,  whoever  abets 

the  commission  of  such  suicide 

Abetment  of  suioide*  i     ii  -■  •  i      i        •xi.   •  * 

shall  be  punished  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  ten  years,  and  shall  also  be  liable  to 
fine. 


ATTEMPTS  TO  MUEDEE.  273 

This  and  the  preceding  Section  contain  express  provisions  for 
the  punishment  of  abetting  soicide  when  that  offence  is  actual- 
ly committed.  The  ordinary  law  of  abetment  is  inapplicable 
here.  Suicide  or  self-murder  may  be  the  act  of  a  person  who  is  by 
law  incapable  of  committing  an  offence  (see  Sections  82, 83) ;  or 
it  may  be  committed  by  a  person  who  is  criminally  responsible 
for  his  actions.  In  the  former  case  Section  305  makes  the 
abetment  of  suicide  an  offence  which  may  be  punished  as 
severely  as  murder. 

Upon  a  charge  of  abetting  suicide,  under  Section  305,  it  will 
be  incumbent  on  the  prosecution,  in  addition  to  the  ordinary 
evidence  of  abetment  by  instigating  or  aiding  &c.,  to  show  to 
the  satisfaction  of  the  Court  the  incapacity,  whether  it  arises 
from  infancy,  or  insanity,  or  intoxication  of  the  person  who  has 
committed  suicide, — ^in  the  same  manner  as  the  incap8U)ity  has 
to  be  proved  by  the  accused  when,  upon  an  ordinary  trial,  it  is 
relied  on  by  way  of  defence.     See  Section  309  and  note. 

307.    Whoever  does  any  act  by  such  intention  or 

knowledge    and    under    such 
Attempt  to  mupdop,  circumstanccs  that  if  he  by  that 

act  caused  death  he  would  be  guilty  of  murder,  shall 
be  punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  ten  years,  and  shall 
also  be  liable  to  fine ;  and  if  hurt  is  caused  to  any 
person  by  such  act,  the  offender  shall  be  liable  either 
to  transportation  for  life,  or  to  such  punishment  as  is 
hereinbefore  mentioned. 

JllustrattoM. 

(a)  A  shoots  at  Z  with  intention  to  kill  him,  under  such  circum- 
stances that,  if  death  ensued,  A  would  be  guilty  of  murder.  A  is  liable 
to  punishment  under  this  Section. 

(b)  A,  with  the  intention  of  causing  the  death  of  a  child  of  tender 
years,  exposes  it  in  a  desert  place.  A  has  committed  the  offence  defined 
by  this  Section,  though  the  death  of  the  child  does  not  ensue. 

(c)  A,  intending  to  murder  Z,  huys  a  gun  and  loads  it.  A  has  not 
yet  committed  the  offence  defined  in  this  Section.  A  fires  the  gun  at 
Z.  He  has  committed  the  offence  defined  in  this  Section  ;  and  if  hy 
such  firing  he  wounds  Z,  he  is  liable  to  the  punishment  provided  by 
the  latter  part  of  thb  Section. 

2   N 


274  CHAPTER  XVI. 

(J)  A,  intending  to  murder  Z  by  poison,  purchases  poison  and 
mixes  the  same  with  food  which  remains  in  A's  keeping ;  A  has  not 
yet  committed  the  offence  in  this  Section.  A  places  the  food  on  Z's 
table  or  delivers  it  to  Z's  servants  to  place  it  on  Z's  table.  A  has 
committed  the  offence  defined  in  this  Section, 

The  intention  or  knowledge  which  is  necessary  to  constitute 
murder  may  exists  combined  with  an  act  which  falls  short  of  the 
complete  commission  of  that  offence.  The  murderer  may  do  an 
act  towards  the  commission  of  the  mnrder^  bat  may  involun- 
tarily fail  or  be  intercepted  or  prevented  from  consummating 
the  crime.  This  and  the  following  Section  seem  tio  apply  (as 
the  Illustrations  show)  to  attempts  to  murder,  in  which  there 
has  been  not  merely  a  commencement  of  an  execution  of  the 
purpose,  but  something  little  short  of  a  complete  execution,  the 
consummation  being  hindered  by  circumstances  independent 
of  the  will  of  the  author.  The  act  or  omission,  although  it 
does  not  cause  death,  is  carried  to  such  a  length  as  at  the  time 
of  carrying  it  to  that  length,  the  offender  considers  sufficient 
to  cause  death. 

Whether  the  act  causes  hnrt  or  not  is  material  only  with 
reference  to  the  degree  of  punishment  which  the  Section  au- 
thorizes. There  may  be  many  atrocious  and  deliberate  at- 
tempts to  murder  falling  within  this  provision,  which  not  only 
cause  no  hnrt,  but  which  are  not  even  trespasses  or  assults. 
A,  for  example,  digs  a  pit  in  his  garden,  and  conceals  the 
mouth  of  it,  intending  that  Z  may  fall  in  and  perish  there. 
Here,  A  has  committed  no  trespass,  for  the  ground  is  his  own ; 
and  no  assault,  for  he  has  applied  no  force  to  Z.  He  may  not 
have  caused  bodily  hurt,  for  Z  may  have  received  a  timely 
caution,  or  may  not  have  gone  near  the  pit.  But  A's  crime  is 
evidently  one  which  ought  to  be  punished  as  severely  as  if  he 
had  laid  hands  on  Z  with  the  intention  of  cutting  his  throat. 

But  although  it  is  not  a  necessary  part  of  this  offence  that 
hnrt  should  be  caused,  the  act  done  towards  the  commission  of 
the  murder  must  be  one  which  approaches  closely  to  the  com- 
pletion of  that  crime.  The  Illustrations  show  this.  If  A 
ehoots  at  Z  with  a  gun  which  he  knows  is  loaded  with  powder 


ATTEMPTS  TO   COMMIT  CULPABLE   HOMICIDE.     275 

only,  or  with  a  gun  which  he  knows  has  its  touchhole  plugged, 
so  that  it  cannot  possibly  be  fired,  or  with  one  which  he  knows 
for  want  of  priming  will  not  go  ofiF,  or  if  he  merely  presents, 
but  does  not  fire,  a  loaded  gun,  he  does  not,  it  seems,  commit 
an  offence  under  this  Section. 

If  a  gun  properly  loaded  is  fired  into  a  room  in  which  the 
person  whose  death  is  intended  is  supposed  to  be,  but  in  fact 
that  person  is  at  the  time  in  another  part  of  the  house  where 
he  could  not  by  possibility  be  reached  by  the  shot :  or  if  a  per- 
son believing  a  block  of  wood  to  be  a  man  who  is  his  deadly 
enemy,  strikes  it  a  blow  intending  to  murder  him  : — in  such 
cases,  it  can  hardly  be  deemed  that  the  mere  firing  or  striking 
with  a  guilty  intention,  the  person  taking  his  chance  of  the 
consequences,  constitutes  an  offence  within  this  Section. 

Attempts  to  commit  grave  offences  when  they  fall  short  of 
that  close  approach  to  a  complete  execution  which  is  here  con- 
templated, are  made  punishable  by  various  provisions  of  the 
Code,  and  where  there  is  no  express  provision  and  an  act  is 
done  towards  the  commission  of  an  offence,  the  Chapter  on 
Attempts  applies  if  the  offence  attempted  is  one  punishable  by 
this  Code  with  transportation  or  imprisonment.  (See  Chapter 
XXIII.  of  Attempts  to  Commit  Offences.) 

Mere  threats  which  are  in  no  way  carried  into  action  are 
punishable  under  Chapter  (XXII.)  of  Criminal  Intimidation, 
&o. 

308:    Whoever  does  any  act  with  such  intention  or 
Attempt tooommit culpable    knowledge    and    under    such 
homicide.  circumstances  that  if  he  by 

that  act  caused  death  he  would  be  guilty  of  culpable 
homicide  not  amounting  to  murder,  shall  be  punished 
with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  three  years,  or  with  fine,  or 
with  both ;  and  if  hurt  is  caused  to  any  person  by- 
such  act,  shall  be  punished  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to 
seven  years,  or  with  fine,  or  with  both. 

2  N  2 


27Q      ^  CHAPTER  XVI. 

Illustration, 

^,  on  grave  and  sudden  provocation,  fires  a  pistol  at  Z,  under 
such  circumstances  that  if  he  thereby  caused  death  he  would  be  guilty 
of  culpable  homicide  not  amounting  to  murder.  A  has  commited  the 
offence  defined  in  this  Section. 

See  the  note  to  the  last  preceding  Section. 

Similar  attempts  may  be  made  to  commit  culpable  homicide 
in  any  of  the  mitigated  forms  which  prevent  that  offence  from 
amounting  to  murder.  Here,  as  in  the  preceding  Section,  the 
attempt  must  be  carried  to  the  point  of  completion,  so  far  as 
the  criminal  is  concerned  ;  but  the  complete  effect  is  frustrated 
by  accident  or  otherwise. 

309.    Whoever  attempts  to  cominit  suicide,  and 

A**^««f  *«  ^««**  ^i^A.      does  any  act  towards  the  corn- 
Attempt  to  oommit  suioide.  •     .      ^^    ^         ,        ^  •■     •■ « 

mission  of  such  oflfence,  shall 
be  punished  with  simple  imprisonment  for  a  term 
which  may  extend  to  one  year,  and  shall  also  be  liable 
to  fine. 

Any  act  which  is  a  part  execution  of  the  criminal  design^  is 
8u£B[cient  to  constitute  abetment  under  this  Section.  But  the 
act  must  be  a  beginning  of  the  act  of  self-murder,  or  such  an 
approach  to  it  as  manifestly  shows  that  there  is  a  present  in- 
tention to  commit  the  crime. 

Insane  persons  and  others  (see  Sections  82 — 85)  whose  ac- 
tions are  not  imputed  to  them  as  offences,  cannot  of  course 
commit  this  offence. 

With  reference  to  this  subject  it  has  been  observed  that  it  is 
very  common  for  native  women  of  all  ages  to  throw  themselves 
into  wells  on  the  merest  momentary  impulse  of  passion,  excited 
generally  by  the  most  trifling  causes, — such  as  an  unexpected 
reprimand,  a  thwarted  wish,  the  colic,  &c. — and  that  the 
relatives  of  such  persons  are  often  unjustly  harassed  by  the 
Police  as  the  alleged  instigators  of  the  offence. 

Pretended  charges  against  innocent  persons  founded  on  cir- 
cumstances in  their  domestic  history  which  may  be  plausibly 
distorted,  and  distressing  inquiries  thereupon  into  family 
matters,  should  be  carefully  guarded  against. 


CAUSING   MISCARRIAGE.  277 

310.  Whoever,  at  any  time  after  the  passing  of 

this  Act,  shall  have  been  ha- 

'^^'  bitually  associated  with  any 

other  or  others  for  the  purpose  of  committing  robbery 

or  child-stealing  by  means  of  or  accompanied  with 

murder,  is  a  Thug. 

311.  Whoever  is  a  Thug  shall  be  punished  with 
Punishment  transportation    for    life,   and 

shall  also  be  liable  to  fine. 

Act  XXX.  of  1836,  made  it  an  offence  punishable  with  im- 
prisonment for  life  with  hard  labour  to  have  belonged  to  a  gang 
of  Thugs,  either  within  or  without  the  territories  of  the  East 
India  Company. 

The  first  of  these  two  Sections  explains  what  is  a  Thug. 
Gangs  of  persons  habitually  associated  for  the  purpose  of  in- 
veigling and  murdering  travellers  or  others  in  order  to  take  their 
property  &c.  are  so  called. 


OP  THE   CATJSINa  OP  MISCARRIAGE,   OP  INJURIES 
TO  UNBORN   CHILDREN,    OP   THE   EXPOSURE 
OP   INPANTS,   AND   OP   THE   CONCEAL- 
MENT OP  BIRTHS. 

312.    Whoever  voluntarily  causes  a  woman  with 

child    to    miscarry    shall,    if 
cauiing  mwoarriage.  ^^^j^  miscarriagc  he  not  caused 

in  good  faith  for  the  purpose  of  saving  the  life  of 
the  woman,  he  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  three 
years,  or  with  fine,  or  with  hoth ;  and  if  the  woman  he 
quick  with  child,  shall  he  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
seven  years,  and  shall  also  he  liable  to  fine. 

Explcmation.    A  woman  who   causes  herself   to 
miscarry  is  within  the  meaning  of  this  Section. 

Miscarriage  is  the  expulsion  of  the  child  or  foetus  from  the 
mother's  womb  at  any  period  of  pregnancy  before  the  term  of 


278  CHAPTER  XVI. 

gestation  is  completed.  The  offence  defined  in  this  Section 
cati  only  be  committed  where  the  woman  is  in  fact  pregnant. 
For  although  there  may  be  a  guilty  intention  and  attempt  to 
commit  it  on  the  person  of  a  woman  believed  to  be,  but  who 
really  is  not,  pregnant, — the  offencfe,  as  here  defined,  seems  to 
require  that  the  woman  should  be  with  child. 

''  Voluntarily  causes."  The  effect  of  miscarriage  is  volun- 
tarily caused,  when  it  is  caused  by  means  which  are  intended,  or 
which  are  known  at  the  time  they  are  employed  to  be  likely  to 
cause  it.     (See  Section  39.) 

'^  If  the  woman  be  quick  with  child,  &c.'*  Quickening,  is  the 
name  applied  to  peculiar  sensations  experienced  by  a  woman 
about  the  fourth  or  fifth  month  of  pregnancy.  The  symptoms 
are  popularly  ascribed  to  the  first  perception  of  the  movements 
of  the  foetus.  But  quickening  is  not  a  constant,  uniform,  and 
well-marked  distinction  of  the  pregnant  state.*  The  phrase 
"  quick  with  child''  is  here  used  probably  merely  to  denote  an 
advanced  stage  of  pregnancy. 

Miscarriage  caused  ^'  in  good  faith"  (see  Section  52)  for  the 
purpose  of  saving  the  life  of  a  woman,  is  no  offence  under  this 
Section,  whether  it  be  caused  with  or  without  the  consent  of 
the  woman.  If  her  consent  is  obtained,  the  act  is  one  which 
is  exempt  from  all  punishment,  under  the  88th  Section. 


*  It  is  stated  in  Taylor's  Kedieal  Jurisprudence  that  no  evidenoe  but  that  of 
the  female  can  satisfactorily  establish  the  fact  of  quickening ;  that  is,  the  precise 
time  when  it  happens.  It  is  said  with  respect  to  tiiis  sign,  that  veiy  few  women 
can  teU  the  exact  day  on  which  they  first  feel  it ;  and  a  large  proportion  cannot 
place  it  within  a  range  of  fourteen  days.  Women  who  profbss  to  be  most  exact 
in  noting  the  period  of  quickening,  differ  from  each  other  as  to  the  time.  There 
is  much  self-deception  as  to  this  symptom.  The  discovery  of  the  movements  of 
a  child  by  an  examiner  is  really  a  proof  that  the  usual  period  of  quickening  is 
past,  but  their  non-discovery,  at  the  time  of  examination,  is  no  proof  whatever 
that  the  woman  has  not  quickened ;  since  the  movements  are  by  no  means  con- 
stant, and  may  be  accidentally  suspended  even  at  several  successive  examinations. 
Besides,  cases  every  now  and  then  occur,  in  which  well  formed,  healthy  females 
do  not  experience  the  sensation  of  quickening  during  the  whole  course  of  preg- 
nancy,  and  what  is  of  more  importance  the  movements  of  the  child  may  be  at 
no  time  perceptible  to  the  examiner.  Females  have  been  known  to  mistake  other 
sensations  for  it,  and  in  the  end  it  has  been  proved  that  they  were  not  pregnant. 
If  the  movements  of  the  child  can  be  felt  by  the  examiner  through  the  abdo- 
men, tliis  is  clear  evidence,  not  only  of  the  woman  being  pregnant,  but  of  her 
having  passed  the  period  of  quickening. 


CAUSING  MISCARRIAGE.  279 

The  Indian  Law  Commissioners  observe,  "  With  respect  to 
the  law  on  the  subject  of  abortion,  we  think  it  necessary  to 
say  only  that  we  entertain  strong  apprehensions  that  this,  or 
any  other  law  on  that  subject  may,  in  this  country,  be  abused 
to  the  vilest  purposes.  The  charge  of  abortion  is  one  which, 
even  where  it  is  not  substantiated,  often  leaves  a  stain  on  the 
honor  of  families.  The  power  of  bringing  a  false  accusation 
of  this  description  is,  therefore,  a  formidable  engine  in  the 
hands  of  unprincipled  men.  This  part  of  the  law  will,  unless 
great  care  be  taken,  produce  few  convictions,  but  much  misery 
and  terror  to  respectable  families,  and  a  large  harvest  of  profit 
to  the  vilest  pests  of  society.  We  trust  that  it  may  be  in  our 
power  in  the  Code  of  Procedure  to  lay  down  rules  which  may 
prevent  such  an  abuse.  Should  we  not  be  able  to  do  so,  we 
are  inclined  to  think  that  it  would  be  our  duty  to  advise  his 
Lordship  in  Council  rather  to  suffer  abortion,  where  the  mother 
is  a  party  to  the  offence,  to  remain  wholly  unpunished,  than  to 
repress  it  by  provisions  which  would  occasion  more  suffering  to 
the  innocent  than  to  the  guilty .'' 

According  to  the  explanation  a  woman  who  causes  herself  to 
miscarry  is  within  this  Section.  But  in  awarding  punishment, 
it  will  not  be  forgotten  that  the  high  caste  young  widow  who, 
to  hide  her  shame,  may  at  the  risk  of  life  cause  herself  to  mis- 
carry, does  not  under  the  cirumstances  in  which  she  is  placed 
by  the  institutions  of  society  commit  an  offence  of  like  crimi- 
nality with  that  of  the  seducer  of  a  young  girl  or  married  woman 
who,  to  cover  her  offence,  causes  such  woman  to  miscarry. 

313.    Whoever  commits  the  oflfence  defined  in  the 

Causing  misowriace  with-  l^st  preceding  Scction  with- 
out woman's  consent.  ^^^  the  conscnt  of  the  woman, 
whether  the  woman  is  quick  with  child  or  not,  shall 
be  punished  with  transportation  for  life,  or  with  im- 
prisonment of  either  description  for  a  term  which 
may  extend  to  ten  years,  and  shall  also  be  liable  to 
fine. 

See  the  note  to  the  last  preceding  Section. 


280  CHAPTER  XVI. 

As  to  consent^  see  Sections  90  and  91. 

314.    Whoever,  with  intent  to  cause  the  miscar- 

Death  caused  by  an  act  done      riage  of  a  WOman   with    child, 
with   intent   to   cause    mis-       -.^  j^i*i  ji 

carriage.  does  any  act  which  causes  the 

death  of  such  woman,  shall  be  punished  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  ten  years,  and  shall  also  be  liable  to  fine ; 
If  act  done  without  wo-  ^ud  if  the  act  is  done  without 
man's  conbent.  ^j^^  conscut  of  the  womau,  shall 

be  punished  either  with  transportation  for  life,  or 
with  the  punishment  above-mentioned. 

Explanation.  It  is  not  essential  to  this  offence 
that  the  offender  should  know  that  the  act  is  likely 
to  cause  death. 

This  species  of  homicide  may  be  committed  involuntarily :  that 
is^  in  the  language  of  the  Code,  by  a  person  who  does  not  intend 
to  cause^  or  think  it  likely  that  he  will  cause,  death  by  the  act 
which  he  does.  If  A,  intending  only  to  cause  miscarriage  to  Z, 
involuntarily  does  an  act  which  causes  her  death,  he  is  liable  to 
punishment  under  this  Section.  And  he  is  thus  liable  whether  he 
acts  with  caution  in  order  to  prevent  risk  to  Z's  life,  or  whether 
he  acts  rashly  or  negligently.  Even  if  he  takes  such  precautions 
that  there  is  no  reasonable  probability  that  Z^s  death  will  be 
caused,  and  if  the  medicine  is  rendered  deadly  by  some  accident 
which  no  human  sagacity  could  foresee,  or  by  some  peculiarity 
in  Z's  constitution,  such  as  there  was  no  ground  whatever  to 
expect,  A  will  be  liable  to  punishment  under  this  Section  for 
causing  death  by  an  act  done  with  intent  to  cause  miscarriage. 

The  consent  of  the  woman  freely  and  intelligently  given,  is 
allowed  to  mitigate  the  offence. 

If  A  kills  Z  by  administering  abortives  to  her  with  the 
knowledge  that  those  abortives  are  likely  to  cause  her  death, 
he  is  guilty  of  culpable  homicide,  which  will  be  culpable  homi- 
cide by  consent,  if  Z  agreed  to  run  the  risk, — and  murder,  if 
Z  did  not  so  agree. 


CAUSING  DEATH  OF  UNBORN  CHILD.     281 

This  is  an  offence  which  can,  it  seems,  be  committed  only 
where  the  woman  is  actually  pregnant.  See  note  to  Section  312. 

315.     Whoever  before  the  birth  of  any  child  does 

Aot  done  with  intent  to  pre-      ^^J   ^ct   With  the  intention  of 

o?"to  ^^e^ft'^&'XlSftS  thereby  preventing  that  child 
^^^^'  from  being  bom  aUve  or  caus- 

ing it  to  die  after  its  birth,  and  does  by  such  act  pre- 
vent that  child  from  being  born  alive,  or  causes  it  to 
die  after  its  birth,  shall,  if  such  act  be  not  caused  in 
good  faith  for  the  purpose  of  saving  the  life  of  the 
mother,  be  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  ten  years, 
or  with  fine,  or  with  both. 

The  causing  of  the  death  of  a  child  in  the  mother^s  womb 
and  before  any  part  of  the  child  has  been  brought  forth  is  not 
homicide.     See  Section  299,  Explanation  3. 

This  Section  punishes  offences  directed  against  the  life  of  an 
unborn  child.  Any  act  done  with  the  intention  here  mentioned, 
which  results  in  the  destruction  of  the  child's  life,  whether 
before  or  after  its  birth,  is  made  punishable.  Suppose  a  child's 
life  is  destroyed  by  potions,  or  bruises  which  it  receives  in  the 
womb,  it  is  immaterial  whether  the  child  is  bom  alive  and  af- 
terwards dies  by  reason  of  them,  or  whether  they  cause  it  to  bo 
bom  dead.  The  offence  is  one  which  will  ordinarily  be  commit- 
ted where  the  woman  is  in  an  advanced  state  of  pregnancy.  But 
the  Section  is  not  expressly  confined  to  causing  the  death  of 
quick  unborn  children.  The  offence  of  causing  miscarriage  con* 
sists  in  procuring  the  expulsion  of  the  child  or  foatus,  by  criminal 
violence  or  other  means,from  the  mother's  womb  before  the  term 
of  gestation  is  completed.  The  offence  which  the  present  Section 
punishes  is  the  injury  to  the  child's  life — the  child  may  be 
bom  in  proper  time,  or  if  bom  before  due  time,  the  miscarriage 
may  happen  by  natural  causes  and  not  by  any  criminal  means. 

Acts  done  in  good  faith  (see  Section  52)  to  save  the  mother's 
life  are  excepted.  Cases  of  negligent  treatment  by  doctors 
and  others,  where  due  care  and  attention  have  not  been  used, 
2  0 


282  CHAPTER  XVI. 

thongh  not  protected  by  this  Exception^  are  not  reached  by  the 
words  of  the  Section^ — ^which  apply  only  to  acts  done  with  the 
intention  of  destroying  the  child^s  life. 

316.    Whoever  does  any  act  under  such  circum- 
stances that  if  he  thereby  caus- 

bom^2b%b7  anaot^amoiu^  cd  death  hc  WOUld  bc  Sn^tv 
ingtoeulpablehomicide.  ^^  culpable  homicidc,  and  doCS 

by  such  act  cause  the  death  of  a  quick  unborn  child, 
shall  be  punished  with  imprisonment  of  either  de- 
scription for  a  term  which  may  extend  to  ten  years, 
and  shall  also  be  liable  to  fine. 

Illustration. 

A,  knowing  that  he  is  likely  to  cause  the  death  of  a  pregnant 
woman,  does  an  act,  which,  if  it  caused  the  death  of  the  woman, 
would  amount  to  culpable  homicide.  The  woman  is  injured  but  does 
not  die ;  but  the  death  of  a  quick  unborn  child  with  which  she  is 
pregnant  is  thereby  caused.  A  is  guilty  oi  the  offence  defined  in 
this  Section. 

This  Section  punishes  offences  against  children  in  the  womb 
where  the  pregnancy  has  advanced  beyond  the  stage  of  quick- 
ening (see  note  to  Section  212)^  and  where  the  death  is  caused 
after  the  quickening  and  before  the  birth  of  the  child.  Any 
act  or  omission  of  such  a  nature  and  done  under  such  circum- 
stances as  would  amount  to  the  offence  of  culpable  homicide, 
if  the  sufferer  were  a  living  person,  will,  if  done  to  a  quick 
unborn  child,  whose  death  is  caused  by  it,  constitute  the  offence 
here  punished.  If  a  person  strikes  a  pregnant  woman  anc( 
thereby  causes  the  death  of  her  quick  unborn  child,  he  will  be 
guilty  of  the  offence  here  defined,  if  the  blow  was  intended  by 
him  to  cause  the  woman's  death  or  was  one  which  he  knew 
or  had  reason  to  believe  to  be  likely  to  cause  it. 

The  act  done  to  the  woman,  if  the  death  of  her  child  is  not 
thereby  caused,  will  probably  be  punishable  as  an  attempt  to 
commit  culpable  homicide  under  the  preceding  Sections  (see 
Sections  302,  808). 

Cases  of  gross  ignorance  or  neglect  or  rashness  in  the 
treatment  of  a  pregnant  woman  will  be  punishable  under  this 


ABANDONMENT  OF  CHILDEEN.  28S 

Section^  if  in  their  oircamstances  they  would  amount  to  the 
offence  of  culpable  homicide  if  the  woman's  death  had  been 
the  result. 

317.    Whoever  being  the  father  or  mother  of  a 

child  under  the  age  of  twelve 

of^uTSa^^  wvS'^J    years  or  having  the  care  of 

byparent  or  person   having      sUCh   child,     shall     CXpOSC     Or 

leave  such  child  in  any  place 
with  the  intention  of  wholly  abandoning  such  child 
shall  be  punished  with  imprisonment  of  either  de- 
scription for  a  term  which  may  extend  to  seven  years, 
or  with  fine,  or  with  both. 

Explanation.  This  Section  is  not  intended  to  pre- 
vent the  trial  of  the  offender  for  murder  or  culpable 
homicide,  as  the  case  may  be,  if  the  child  die  in  con- 
sequence of  the  exposure. 

The  offence  consists  in  the  desertion  by  the  psurent^  or  other 
person  who  has  undertaken  parental  daties,  of  an  infant  or 
child  of  snch  tender  age  that  it  is  not  able  to  provide  for  and 
to  take  care  of  itself.  This  offence  is  complete  notwithstand- 
ing that  no  actnal  danger  or  risk  of  danger  arises  to  the  child^s 
life.  Thus,  suppose  a  mother  leaves  her  illegitimate  infant  child 
at  a  hospital  or  at  some  place  where  it  is  certain  the  child  will 
be  seen  and  cared  for^ — she  has  committed  this  offence,  if  she 
intended  to  abandon  the  child.  It  is  true  that  she  has  com- 
mitted the  offence  under  circumstances  greatly  mitigating  it,  as 
compared  with  a  desertion  on  a  barren  heath  or  in  an  un- 
frequented place,  where  the  consequence  of  desertidh  is  great 
danger  or  risk  of  danger  to  life. 

The  Explanation  shows  that  a  desertion  under  snch  circum- 
stances that  death  is  the  result  of  the  exposure,  may  amount 
to  murder  or  culpable  homicide  :  and  though  the  death  of  the 
child  may  not  ensue,  the  offence  may  amount  to  an  attempt 
punishable  under  Section  307.  (See  Illustration  (6)4pf  that  Sec- 
tion.) 

2  0  2 


284  CHAPTER  XVI. 

"Being  the  father  or  mother,  &o.^^  Both  are  equally 
bound  by  ties  of  duty,  and  this  equally  whether  the  child  be 
born  in  wedlock  or  be  illegitimate.  An  infant  requiring  nur- 
ture, or  a  child  of  tender  years,  will  ordinarily  be  in  the  im- 
mediate charge  of  the  mother,  the  father's  duty  being  that  of 
providing  for  both  mother  and  ofiFspring.  The  person  who  has 
the  immediate  care  of  the  child  is  the  person  contemplated.  A. 
parent  who  is  absent,  but  who  has  provided  duly  for  the  main- 
tenance and  protection  of  his  child,  would  not  be  crimi- 
nally answerable  for  its  abandonment  by  the  person  in  whose 
charge  he  had  left  it«  The  offence  consists  in  the  desertion 
of  the  child  by  a  person  who  is  bound  by  nature  to  support 
and  protect  it,  or  who  has  taken  on  himself  that  duty,  whether 
by  adopting  the  child,  or  by  way  of  contract  with  the  parent,  or 
in  some  other  way. 

"  Shall  expose  or  leave,  &c.'^  Exposure  or  leaving  the  child 
with  the  intention  of  wholly  abandoning  it,  is  an  essential  part 
of  the  offence. 

In  Bengal,  among  the  lower  classes  of  Mahomedans,  it  some- 
times happens  that  parents  in  fulfilment  of  a  vow,  take  one  of 
their  young  male  children  to  the  Soonderbuns,  and  there  appa- 
rently desert  him.  The  place  chosen  is  near  some  Durgah  or 
shrine  erected  by  the  Fukirs,  to  which  the  child  has  been  dedi- 
cated. The  intention,  it  is  said>  is  not  that  the  child  should  be 
abandoned, — ^for  the  parent  continues  to  remain  near  at  hand, 
—but  that  he  shall  make  his  way  to  the  neighbouring  Fukir, 
and  after  remaining  for  some  time,  shall  choose  either  to  return 
to  his  family  or  to  adopt  the  Fukir's  mode  of  life.  In  such  cases 
there  is,  it  seems,  no  intention  to  abandon  the  child,  and  no 
exposure  or  desertion  of  it  within  the  meaning  of  this  Section. 

Again  according  to  a  superstitions  usage  which  prevails  in 
some  parts  of  Eastern  Bengal,  an  infant  suffering  from  convul- 
sions or  which  refuses  sustenance,  &c.,  is  put  into  a  basket  and 
swung  up  to  a  tree>  and  to  all  appearance  abandoned.  The  belief 
is,  that  if  the  child  is  to  be  restored  at  all,  it  will  be  restored  by 
the  spirit  by  whom  the  child  is  possessed  if  entirely  delivered 


CONCEALMENT  OF   BIRTH.  286 

over  to  its  mercy.  The  parents  of  the  child  declare  that  they 
place  the  child  there  in  the  hope  of  preserving  its  life  and  that 
they  are  not  neglectful  of  its  wants. 

Bat  the  plea  of  good  intention  is  not  too  readily  to  be  receiv- 
ed to  palliate  acts  so  imminently  dangerous  to  the  lives  of 
helpless  children^  and  a  barbarous  usage  cannot  be  allowed  to 
supersede  the  law.  In  such  cases  as  those  just  mentioned^ 
however,  even  if  the  Court  is  satisfied  that  there  is  an  intention 
wholly  to  abandon  the  child^  and  that  the  case  is  brought 
within  this  or  some  other  Section  of  the  Code,  it  will  probably 
deem  the  accused  person  sufficiently  punished  by  a  light  sen- 
tence, having  regard  to  the  motives  which  prompt  his  offence. 

Upon  the  question  of  intention,  the  previous  treatment,  as 
well  as  the  circumstances  of  the  p&rticular  case,  will  throw  light. 
Thus  previous  neglect  or  ill-treatment  of  the  child  may  add  to 
the  probability  of  the  exposure  being  with  intent  wholly  to 
abandon  it.  In  a  time  of  famine,  a  child  may  be  deserted,  not 
because  those  who  have  the  care  of  it  intend  wholly  to  abandon 
it,  but  from  mere  destitution  and  inability  to  support  it. 

318.    Whoever  by  secretly  burying  or  otherwise 

Concealment  of  birth  by    disposing  of  the  dead  body  of 

seoretdispoeaiofdeadbody.      ^  chlld,  whether  such child dlo 

before  or  after  or  during  its  birth,  intentionally  con- 
ceals or  endeavours  to  conceal  the  birth  of  such  child, 
shall  be  punished  with  imprisonment  of  either  de- 
scription for  a  term  which  may  extend  to  two  years, 
or  with  fine,  or  with  both. 

The  concealment  of  the  birth  of  a  child  is  not  in  itself  an 
offence,  but  only  a  circumstance  of  suspicion  which  may  form 
part  of  the  evidence  of  an  offence.  This  circumstance  the  law 
has  thought  fit  to  enact  as  the  definition  of  a  substantive  of- 
fence. Such  enactments  are  justified  by  the  facility  with  which 
the  life  of  an  infant  at  its  birth  is  extinguished,  and  the  temp- 
tation to  take  it  away  in  cases  of  bastard  children. 

The  prosecutor  must  first  establish,  to  the  satisfaction  of  tho 


286  CHAPTER  XVI. 

Courts  the  fact  of  the  birth  of  the  child.  And  the  secret  bury* 
ing  or  other  disposal  of  the  dead  body  mast  then  be  proved. 

Whether  the  father^  mother^  or  a  stranger^  does  the  act^  re« 
gard  must  be  had  to  the  doer  and  the  person  who  orders  it  to 
be  done*  Suppose  the  mother  is  passive^  giving  no  directions, 
but  another  near  her  directs  the  burial  or  other  disposal^ — it 
seems  she  cannot  be  punished.  If  there  is  no  act  of  conceal- 
ment or  disposal  of  the  body  afber  the  child  is  dead^  the  offence 
is  not  committed.    A  mere  denial  of  its  birth  is  not  sufficient. 

"  Conceals  or  endeavours  to  conceal  birth,  &c./' — not  the 
fact  of  pregnancy,  or  the  death,  but  the  birth,  i.  e.  the  delivery 
of  a  child  dead  or  living. 

There  must  be,  it  seems,  a  disposal  in  some  secret  place, 
whether  the  place  is  intended  only  as  a  place  of  temporary  de- 
posit, or  as  a  place  of  permanent  deposit.  Merely  putting  the 
body  in  an  open  exposed  position,  as  on  a  bed,  would  not  be  such 
a  place.  But  if  it  be  put  in  a  case,  or  under  a  bed,  pillow, 
mattress,  &c.,  this  will  be  a  sufficient  disposal. 

Those  offences  against  the  human  body  which  amount  to 
murder,  or  culpable  homicide  of  a  mitigated  kind,  or  which  are 
deliberate  attempts  to  commit  murder  or  culpable  homicide,  have 
been  dealt  with  in  the  preceding  division  of  this  chapter.  There 
are  other  offences  against  the  person  of  a  lower  degree.  In 
these  the  bodily  injuries  inflicted,  or  intended  to  be  inflicted,  fall 
short  of  causing  death,  and  of  those  atrocious  attempts  to  cause 
death  which  have  been  mentioned. 

Every  one  of  those  offences  against  the  human  body  which 
remain  to  be  considered  falls  under  some  one  or  more  of  the 
following  heads  : — Hurt,  Restraint,  Assault,  Kidnapping,  Rape^ 
Unnatural  Crimes. 


OF  HTJET. 

Many  of  the  offences  within  this  division,  will  also  fall  under 
the  head  of  assualt.     A  stab,  a  blow  which  fractures  a  limb. 


CAUSING  HURT.  287 

the  flinging  of  boiling  water  over  a  person^  are  assaults^  and  are 
also  acts  which  cause  bodily  hart.  But  bodily  hurt  may  be 
caused  by  many  acts  which  are  not  assaults.  A  person^  for 
example^  who  mixes  a  deleterious  potion,  and  places  it  on  the 
table  of  anoth^ ;  a  person  who  conoeals  a  scythe  in  the  grass  on 
which  another  is  in  the  habit  of  walking ;  a  person  who  digs  a 
pit  in  a  public  path^  intending  that  another  may  fall  into  it;— 
all  these  may  cause  serious  hurt^  and  may  be  justly  punished  for 
causing  such  hurt.  But  they  cannot^  without  extreme  violence 
to  language,  be  said  to  have  committed  assaults.  All  bodily 
hurts,  not  only  those  which  are  serious  but  also  those  which  are 
slight,  are  within  the  provisions  inserted  under  this  division.  But 
a  distinction  is  made  between  "  hurt''  and  '^  grievous  hurt/'  It 
may  not  be  possible  to  draw  a  line  between  the  two,  with  perfect 
accuracy.  But  it  is  better  that  some  such  line  should  be  drawn, 
though  rudely,  than  that  offences,  some  of  which  approach  in 
enormity  to  murder,  while  others  are  little  more  than  frolics 
which  a  good  natured  man  would  hardly  resent,  should  be  class- 
ed together.  The  several  penal  provisions  which  are  here  made 
for  these  offences,  are  intended  to  mark  by  corresponding 
degrees  of  punishment  the  different  degrees  of  bodily  injury 
caused.  Still  more  they  mark  the  mischievous  intentions  with 
which  such  injuries  have  been  perpetrated.  For  it  is  the 
intention  or  knowledge  with  which  the  hurt  is  inflicted  that 
must  chiefly  be  regarded  in  the  award  of  punishment.  Where 
a  wicked  intention  is  shown  to  the  satisfaction  of  the  Judge, 
the  severity  of  the  hurt  inflicted  is  not  a  circumstance  which 
ought  to  be  mainly  considered  in  apportioning  the  punishment ; 
though  it  is  undoubtedly  a  circumstance  which  is  important  as 
evidence  when  the  intention  is  not  clearly  established. 

319.    Whoever    causes    bodily   paiii,  disease,  or 
^^^  infirmity,  to  any  person,  is  said 

to  cause  hurt. 

As  to  the  degree  of  bodily  pain,  &c.  it  should  be  borne  in 
mind  on  the  one  hand  that  harm  so  slight,  that  no  person  of 


288  CHAPTER  XVI. 

ordinary  sense  and  temper  would  complain  of  it,  is  by  a  Gener- 
al Exception  excluded  (see  Section  95) :  while  on  the  other, 
severe  bodily  pain  will  fall  within  the  definition  contained  in 
Section  819,  whatever  may  be  the  duration  of  such  pain. 

320.  The  following  kinds  of  hurt  only  are  de- 
Grievous  hurt.  signatod  as  "  grievous  :" — 

First.    Emasculation. 

Secondly.  Permanent  privation  of  the  sight  of 
either  eye. 

Thirdly.  Permanent  privation  of  the  hearing  of 
either  ear. 

Fourthly.     Privation  of  any  member  or  joint. 

Fifthly.  Destruction  or  permanent  impairing  of 
the  powers  of  any  member  or  joint. 

Sixthly.  Permanent  disfiguration  of  the  head  or 
face. 

Seventhly.  Fracture  or  dislocation  of  a  bone  or 
tooth. 

FRghthly.  Any  hurt  which  endangers  life  or  which 
causes  the  sufferer  to  be,  during  the  space  of  twenty 
days,  in  severe  bodily  pain,  or  unable  to  follow  his 
ordinary  pursuits. 

Some  hurts  which  are  not,  like  those  kinds  of  hurts  which 
are  mentioned  in  the  first  seven  clauses,  obviously  distinguish- 
ed from  slight  hurts,  may  nevertheless  be  most  serious.  Thus 
a  wound  may  cause  intense  pain,  prolonged  disease  or  lasting 
injury  to  the  constitution,  although  it  does  not  fall  within 
any  of  these  clauses.  Again  a  beating  which  does  not  maim  the 
sufferer  or  break  his  bones,  may  be  so  cruel  as  to  bring  him  to 
the  point  of  death.  It  is  clear  that  such  hurts  should  be  class- 
ed with  those  which  are  grievous,  and  not  with  hurts,  all  traces 
of  which  disappear  in  a  few  days.  Accordingly  the  8th  clause 
provides  for  them.  Three  circumstances  are  mentioned  in  the 
clause,  any  one  of  which  can  make  a  hurt  a  grievous  hurt  of 
that  kind  :  (1)  if  life  is  endangered  by  it,  or  (2)  if  severe 
bodily  pain  ia  caused  for  twenty  days,  or  (3)  if  the  sufierer  is 
unable  to  follow  his  ordinary  pursuits  for  that  length  of  time. 


CAUSING   HURT.  289 

The  length  of  time  during  which  he  is  in  pain  or  diseased^  or  in- 
capacitated for  pursuing  his  ordinary  avocations,  though  a  de- 
fective criterion  of  the  severity  of  the  hurt  is  the  best  that  can 
be  devised.  And  it  is  one  which  may  be  employed,  not  merely 
in  cases  where  violence  has  been  used,  but  in  cases  where  hurt 
ha^  been  caused  without  any  assault,  as  by  the  administration 
of  drugs,  the  placing  of  ropes  across  a  road,  Ac. 

321.  Whoever  does  any  act  with  the  intention  of 

voiuntamycauBinghurt.       ^^^^^^^  causing  hurt  to  any 

person,  or  with  the  knowledge 
tliat  he  is  likely  thereby  to  cause  hurt  to  any  person, 
and  does  thereby  cause  hurt  to  any  person,  is  said 
"  voluntarily  to  cause  hurt." 

In  commenting  on  the  first  Section  of  this  Chapter,  we  have 
noticed  the  Explanation,  (Section  32)  which,  except  where  a 
contrary  intention  appears  from  the  context,  gives  so  extended 
a  meaning  to  the  words  ^'  does  any  act,'^  that  they  include  also 
illegal  omissions.  In  the  same  place  we  noticed  the  guilty 
intention  or  knowledge,  &c.,  as  essential  ingredients  in  the 
offence  of  culpable  homicide.  They  are  equally  to  be  regarded 
in  offences  coming  within  the  present  division  of  the  Chapter. 

Both  the  extent  of  the  hurt  and  the  intention  of  the  offend- 
er must  be  considered.  His  intention  may,  in  this,  as  in  all 
other  cases,  usually  be  inferred  from  the  act  which  he  has  done* 
It  should  be  observed  that  the  definition  now  under  considera- 
tion will  include  a  case  in  which  a  person,  intending  to  cause 
hurt  to  A,  or  knowing  it  to  be  likely  that  he  will  cause  such 
hurt,  unintentionally  hurts  B. 

The  expressions  which  are  explained  in  this  and  the  follow- 
ing Sections  occur  in  almost  all  the  subsequent  Sections  of  this 
division.  They  designate  an  act  done  with  the  intention  to 
cause  or  with  the  knowledge  that  it  is  likely  to  cause  hurt, 
and  by  which  hurt  is  actually  caused. 

322.  Whoever  voluntarily  causes  hurt,  if  the  hurt 
voiuntarfiy  causing  griev-    wMch  he  intends  to  cause  or 

ouBhurt.  knows  himself  to  be  likely  to 

2  P 


290  CHAPTER  XVI. 

cause  is  grievous  hurt,  and  if  the  hurt  which  he 
causes  is  grievous  hurt,  is  said  "  voluntarily  to  cause 
grievous  hurt." 

^a^lanation.  A  person  is  not  said  voluntarily  to 
cause  grievous  hurt  except  when  he  hoth  causes  griev- 
ous hurt,  and  intends  or  knows  himself  to  he  likely  to 
cause  grievous  hurt.  But  he  is  said  voluntarily  to 
cause  grievous  hurt,  if,  intending  or  knowing  himself 
to  be  likely  to  cause  grievous  hurt  of  one  kind,  he 
actually  causes  grievous  hurt  of  another  kind. 

lUmtration, 

A,  intending  or  knowing  himself  to  be  likely  permanently  to  dis- 
figure Z's  face,  gives  Z  a  blow  which  does  not  permanently  disfigure 
Z*s  face,  but  which  causes  Z  to  suffer  severe  bodily  pain  for  the 
splice  of  twenty  days.     A  has  voluntarily  caused  grievous  hurt. 

It  is  requisite  not  only  that  the  hurt  itself  should  be  griev- 
ous, but  also  that  the  offender  should  intend  or  know  himself 
to  be  likely  to  cause  a  grievous  hurt.  A  man  who  means  only 
to  inflict  a  slight  hurt  may,  without  intending  or  expecting  to 
do  so,  cause  a  hurt  which  is  exceedingly  serioi^s.  A  pusb  which 
to  a  man  in  health  is  a  trifle,  may>  if  it  happens  to  be  directed 
against  a  diseased  pftrt  of  an  infirm  person,  occasion  conse- 
quences which  the  offender  never  oonteipplated  as  possible.  A 
blow  designed  to  in^ct  only  p^in  for  a  moment,  may  cause  the 
person  strpck  to  lose  his  footing,  to  fall  from  a  considerable 
height  and  to  break  a  limb.  Bqt  it  would  be  unjust  to  punish  the 
offenders  in  such  cases  for  results  which  could  not  reasonably 
be  expected  or  intended  to  follow  their  acts. 

Bpt  if  grievous  }iurt  of  any  kind  was  contemplated,  it  is  im- 
material (as  the  Explanation  and  Illustration  show)  whether  the 
hurt  caused  is  the  hurt  contemplated,  provided  only  it  is  griev- 
ous. '  The  result  and  the  intention  inust  to  this  extent  correspond. 

The  offender's  intention  may  be  reasonably  proved  from  his 
acts.  But  how,  it  may  be  s^ked,  are  we  to  discover  what  degree 
of  hurt  the  offender  '^  Icnows  Jiimself  to  he  likely  to  cause  ?'' 
It  is  not  necessary  that  there  should  be  any  hurt  of  which 
it   could    with    tri^th   be   said,   ihis    and   this     alone  is   the 


CAUSING  HURT.  291 

degree  of  hart  which  the  offender  knew  himself  to  be  likely 
to  canse.  A  person  who  tiee  a  rope  across  a  roc^  by  night, 
may  know  himself  to  be  likely  to  cause  grievous  hurt,  even 
though  he  thinks  it  on  the  whole  more  probable  that  he  will 
only  cause  hurt  not  grievous.  He  may  contemplate  both  at  the 
same  time.  The  duty  of  the  judge  in  such  a  case  will  be,  not 
to  seek  for  direct  proof  of  the  precise  degree  of  hurt  which  the 
offender  thought  himself  likely  to  cause,  but  to  draw  a  con- 
clusion from  the  nature  of  the  act  and  the  evidence  generally  as 
to  whether,  among  other  consequences,  grievous  hurt  might  not 
reasonably  have  been  thought  likely  to  ensue  from  it.  If  the  fair 
conclusion  at  which  he  arrives  is  that  nothing  more  than 
simple  hurt  was  probably  to  be  anticipated,  then  although 
grievous  hurt  may  unexpectedly  have  ensued,  it  will  be  his 
duty  to  convict  the  offender  of  causing  simple  hurt  only. 

In  the  definitions  of  ''  hurt'*  and  "  grievous  hurt,*'  and  in 
many  other  definitions  throughout  the  Code,  the  lower  offence 
"  hurt''  is  so  defined  as  to  include  all  cases  which  fall  within  the 
definition  of  the  cognate  higher  offence  "grievous  hurt/' 
One  and  the  same  thing  may  therefore  here,  and  elsewhere 
throughout  the  Code,  be  an  offence  under  more  than  one 
penal  clause*  The  advantage  of  making  the  definition  of  the 
lower  of  two  closely  related  offences  include  cases  in  which  the 
higher  is  committed  is,  that,  if  the  evidence  leaves  it  doubtful 
whether,  ex.  gr.,  "  hurt"  or  "  grievous  hurt"  has  been  commit- 
ted, there  may  be  a  conviction  for  the  lower  offence. 

323.    Whoever,  except  in  the  case  provided  for  by 
Punishment  for  Toinntariiy    Section  334,  Voluntarily  causes 
causing  hurt.  hurt,  shall  be  punished  with 

imprisonment  of  either  description  for  a  term  which 
may  extend  to  one  year,  or  with  fine  which  may  ex- 
tend to  one  thousand  Rupees,  or  with  both. 

This  is  the  ordinary  punishment,  for  the  infliction  of  simple 
bodily  hurt :  but  there  are,  as  will  be  seen,  certain  aggravating 
and  mitigating  circumstances  which  make  a  considerable  differ- 
2  p  2 


292  CHAPTER   XVI. 

ence  in  the  character  of  the  ofFence.  The  excepted  Section 
334  relates  to  hurt  caused  on  provocation. 

324.  Whoever,  except  in  the  case  provided  for  by 

Voluntartly  causing  hurt  by       Scctioil  334,  VOluntaxily  CaUSeS 

dangepousweapons  or  means,  j^^^t  by  means  of  any  instru- 
naent  for  shooting,  stabbing,  or  cutting,  or  any  instru- 
ment, which,  used  as  a  weapon  of  offence,  is  likely 
to  cause  death,  or  by  means  of  fire  or  any  heated  sub- 
stance, or  by  means  of  any  poison  or  any  corrosive 
substance,  or  by  means  of  any  explosive  substance, 
or  by  means  of  any  substance  which  it  is  deleterious  to 
the  human  body  to  inhale,  to  swallow,  or  to  receive 
into  the  blood,  or  by  means  of  any  animal,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  three  years,  or  with  fine, 
or  both. 

The  means  used  to  inflict  the  hurt  indicate  great  malignity. 
A  blow  with  the  fist  may  give  as  much  pain  and  cause  as 
lasting  injury  as  cutting  with  a  knife  or  branding  with  a  hot 
iron.  But  in  most  cases,  the  offender  who  has  used  a  knife  or 
a  hot  iron  is  a  far  worse  and  more  dangerous  member  of  society 
than  he  who  has  only  used  his  fist.  The  hurt  actually  inflict- 
ed may  not,  according  to  the  classification  of  hurts,  be  a  griev- 
ous hurt.  Yet,  on  account  of  the  mode  in  which  it  is  inflicted, 
it  deserves  to  be  punished  more  severely  than  many  grievous 
hurts. 

The  administering  deleterious  or  stupefying  drugs  with 
the  view  to  commit  an  offence  is  made  punishable  by  a  sub- 
sequent Section  (see  Section  328) .  The  mere  administering 
any  such  deleterious  thing,  where  the  object  or  intention  is  not 
apparent,  may  be  an  offence  within  this  Section. 

325.  Whoever,   except  in  the  case  provided  by 
Punishment  for  voinntarUy     Scctiou  335,  Voluntarily  causcs 

causing  grievous  hurt.  gricvous  hurt,  shall  bc  puuish- 

ed  with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  seven  years,  and  shall  also  be 
liable  to  fine. 


CAUSING   HURT.  293 

326.    Whoever,   except  in  the  case  provided  by 
voiuntamy  causing  griev.     Section  335,  voluntarilj  causcs 

ons  hurt  by  dangerous  wea-      gTlCVOUS  nUTt,  by  meanS  01  any 

instrument  for  shooting,  stab- 
bing, or  cutting,  or  any  instrument  which,  used  as 
a  weapon  of  offence,  is  likely  to  cause  death,  or  by 
means  of  fire  or  any  heated  substance,  or  by  means 
of  any  poison  or  any  corrosive  substance,  or  by  means 
of  any  explosive  substance,  or  by  means  of  any  sub- 
stance which  it  is  deleterious  to  the  human  body 
to  inhale,  to  swallow  or  to  receive  into  the  blood,  or 
by  means  of  any  animal,  shall  be  punished  with  trans- 
portation for  life,  or  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  ten  years, 
and  shall  also  be  liable  to  fine. 

Sections  825  and  326  like  the  two  Sections  immediately 
preceding,  provide  the  ordinary  punishment,  and  the  punish- 
ment under  certain  aggravating  circumstances^  of  the  offences 
mentioned — the  two  later  Sections  applying  to  the  case  of  caus- 
ing f<  grievous  hurt,*'  and  the  two  others  to  the  case  of  "  hurt/* 

Many  acts  made  punishable  under  the  preceding  provisions 
may  approach  closely  in  character  to  those  deliberate  attempts 
to  commit  culpable  homicide  which  are  punished  by  Sections 
807  and  308.  Such  attempts,  when  hurt  is  caused  by  them,  are 
distinguishable  from  the  offences  here  punished, — because  in 
the  former  the  act  done  is  intended  or  known  to  be  likely  to  cause 
death ;  whereas  nothing  more  than  hurt  or  grievous  hurt  is 
contemplated  in  cases  falling  under  the  present  Sections.  But 
it  may  happen  that  the  same  act  and  the  same  circumstances 
which  satisfy  the  Court  that  hurt  or  grievous  hurt  has  been 
voluntarily  caused^  are  equally  cogent  to  show  that  the  intention 
of  the  accused  was  to  cause  death. 

It  is  remarkable  that  there  is  no  express  provision  under  this 
head  ^'  of  hurt,'*  for  cases  in  which  hurt  is  inflicted  in  an  attempt 
to  murder  or  to  commit  culpable  homicide.  Such  cases  may,  it 
seems,  be  punished  either  under  the  penal  clauses  which  have 
been  referred  to  (Sections  307,  308) ;  or^  if  they  are  not  thought 


294  CHAPTER  XVI. 

fit  for  prosecution  as  offences  within  those  claases^  then  under 
the  Sections  contained  in  the  present  dinsion. 

327.  Whoever    voluntarily  causes  hurt  for  the 
tr ,    * -41       -4    V -4*      purpose  of  extorting  from  the 

Voluntarily  oamdng  hurt  to      *    ^  -  " 

extort  property  or  to  con-    sufiferer,  or  iTom  anv  persou 

strain  to  an  iUesal  aot.  .    ,  i     t  •      i  v  «»*^     * 

interested  m  the  suflferer,  any 
property  or  valuable  security,  or  of  constraining  the 
sufferer  or  any  person  interested  in  such  suflFerer,  to 
do  anything  which  is  illegal  or  which  may  facilitate 
the  commission  of  an  oflFence,  shall  be  punished  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  ten  years,  and  shall  also  be  liable 
to  fine. 

The  bodily  hurt  is  inflicted  by  way  of  torture.  The  execra- 
ble cruelties  which  are  committed  in  India  by  robbers^  dacoits^ 
&c.  for  the  purpose  of  extorting  property,  or  information  relat- 
ing to  property,  render  a  severe  punishment  necessary. 

The  Section  applies  not  only  to  such  cases  but  to  all  cases  in 
which  the  hurt  is  for  the  purpose  of  extorting,  or  compelling 
against  the  sufferer's  consent,  the  delivery  of  property,  notwith- 
standing that  the  offender  may  have  a  valid  claim  or  title  to 
such  property. 

"  Person  interested  in  the  sufferer.''  Any  tie  of  blood  relation- 
ship, marriage,  service,  or  even  fiiendship,  seems  sufficient.  The 
Court  must  ascertain  for  what  purpose  the  suffering  was  caused, 
whether  it  was  directed  wholly  at  the  sufferer  or  at  another 
through  him.  Besides  the  purposes  above  referred  to,  of  extort- 
ing property  or  information  relating  to  property,  another  pur- 
pose may  be  to  constrain  to  any  illegal  act.  The  words 
'^  offence"  and  '*  illegal"  are  explained  (see  Sections  40, 43). 

328.  Whoever  administers  to  or  causes  to  be  taken 

Administering     stupefring      bv  aUV    pCrSOU    aUV    poisOU    Or 
drag   with,  intent    to  cause         •^  j.         j*   '  •    a       •      x* 

gSrt,&o.  any   stupefymg,  mtoxicatmg, 

or  unwholesome  drug,  or  other  thing,  with  intent  to 
cause  hurt  to  such  person,  or  with  intent  to  commit  or 
to  facilitate  the  commission  of  an  offence,  or  knowing  it 


CAUSING  HURT.  295 

to  be  likely  that  he  will  thereby  cause  hurt,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  ten  years,  and  shall  also 
be  liable  to  fine. 

This  offence  is  complete  although  no  hurt  is  caused  to  the 
person  to  whom  the  poison  or  drug  is  administered.  It  is 
sufficient  if  he  is  induced  to  take  it  by  a  person  who  has  any 
such  intention  as  is  specified  in  the  Section^  or  who  knows  that 
it  is  likely  to  cause  hurt. 

A  person  who  kno¥^ng1y  causes  another  to  take  poison^  may 
be  presumed^  without  further  proofs  to  intend  to  cause  hurt, 
unless  he  is  able  to  show  satisfactorily  a  good  intention,  e.  g. 
that  it  was  administered  in  good  faith  medicinally.  Stupe- 
fying, intoxicating,  or  unwholesome  drugs  or  liquors  may  often 
be  given  and  taken  by  those  who  know  their  qualities,  or  who 
have  no  intention  to  cause  hurt  or  to  commit  an  offence  by 
means  of  them.  Where  such  things  are  administered,  the 
criminal  intention,  which  is  an  essential  portion  of  the  offence 
here  defined,  should  be  made  to  appear  to  the  satisfaction  of 
the  Court. 

The  sale  of  intoxicating  or  unwholesome  liquors  or  drugs  by 
persons  who  know  their  qualities,  and  that  they  are  likely  to 
cause  hurt,  is  not,  it  seems,  an  offence  falling  under  this  Sec- 
tion. Such  offences  are  elsewhere  made  punishable.  (See 
Sections  272—276.) 

329.    Whoever  voluntarily  causes  grievous  hurt 

for  the  purpose  of  extorting 
01M hSrtu?SrtSrtp^er?y 5  ffom  the  sufforer,  or  from  any 
tooon.traintoanine«aiaot.      person  interested  in  the  suflFer. 

er,  any  property  or  valuable  security,  or  of  constrain- 
ing the  sufferer  or  any  person  interested  in  such 
sufferer  to  do  anything  that  is  illegal  or  which  may 
facilitate  the  commission  of  an  offence,  shall  be  pun* 
ished  with  transportation  for  life  or  imprisonment  of 
either  description  for  a  term  which  may  extend  to  ten 
years,  and  shall  also  be  liable  to  fine. 


296  CHAPTER  XVI. 

See  the  note  to  Section  327. 

Grievous  hurt  under  the  like  aggravated  circumstances  is 
here  made  punishable. 

330.  Whoever  voluntarily  causes  hurt,   for  the 

purpose  of  extorting  from  the 

Voluntarily  oausing  hurt  to       *    rs»  •    a. 

extort  confession  or  to  com-      SUIierer,    Or    aUV    pCrSOU  Inter- 
pol restoration  of  property.  j.    j   •      j.\^  £D 

ested  in  the  suflrerer,  any  con- 
fession or  any  information  which  may  lead  to  the 
detection  of  an  oflFence  or  misconduct,  or  for  the 
purpose  of  constraining  the  sufferer  or  any  person 
interested  in  the  sufferer  to  restore  or  to  cause  the 
restoration  of  any  property  or  valuable  security  or  to 
satisfy  any  claim  or  demand,  or  to  give  information 
which  may  lead  to  the  restoration  of  any  property  or 
valuable  security,  shall  be  punished  with  imprison- 
ment, of  either  description  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to  fine. 

Illustrations, 

(a)  A,  a  police  officer,  tortures  Z  in  order  to  induce  Z  to  confess  that 
he  committed  a  crime.     A  is  guilty  of  an  offence  under  this  Section. 

(b)  A,  a  police  officer,  tortures  B  to  induce  him  to  point  out  where 
certain  stolen  property  is  deposited.  A  is  guilty  of  an  offence  uuder 
this  Section. 

(c)  A,  a  Revenue  officer,  tortures  Z  in  order  to  compel  him  to  pay 
certain  arrears  of  Revenue  due  from  Z.     A  is  guilty  of  au  offence  ' 
under  this  Section. 

(d)  A,  a  Zemindar,  tortures  a  ryot  in  order  to  compel  him  to  pay 
his  rent.     A  is  guilty  of  an  offence  under  this  Section. 

331 .  Whoever  voluntarily  causes  grievous  hurt  for 

Voluntarily  causing  griev-      the  purpOSe  of  CXtortiug  frOm 

S?\^'^mplf  ^JStSJ^/fon'^JS  the  sufferer,  or  from  any  person 
property.  interested  in  the  sufferer,  any 

confession  or  any  information  which  may  lead  to  the 
detection  of  an  offence  or  misconduct,  or  for  the  pur- 
pose of  constraining  the  sufferer  or  any  person  interest- 
ed in  the  sufferer  to  restore  or  to  cause  the  restoration 
of  any  property  or  valuable  security,  or  to  satisfy  any 
claim  or  demand  or  to  give  information  which  may 
lead  to  the  restoration  of  any  property  or  valuable 
security,  shall  be  punished  with  imprisonment  of  either 


CAUSING  HUET.  297 

description  for  a  term  which  may  extend  to  ten  yearsi 
and  shall  also  be  liable  to  fine. 

The  hart  or  grievons  hurt  in  these  Sections  is  supposed  to  be 
committed  by  way  of  torture,  but  for  purposes  differing  from 
those  mentioned  in  the  two  preceding  Sections.  The  illustra« 
tions  show  the  operation  of  these  provisions.  The  information 
sought  for  may  be  required  for  the  advancement  of  justice- 
nay  more,  it  may  be  such  information  as  cannot  be  withheld 
without  offending  against  public  justice — ^the  property,  the  ex- 
tortion of  which  is  sought,  may  be  property  which  the  sufferer 
has  borrowed  irpm  the  offender,  and  which  he  illegally  refuses 
to  give  back — the  claim  or  demand  may  be  a  just  claim — ^but 
the  law  will  not  tolerate  the  employment  of  such  means  as  are 
here  made  punishable,  even  when  used  for  honest  ends. 

332.  Whoever  volimtarily  causes  hurt  to  any  per- 
_,      _        .     ^  _.      son  being  a  public  servant  in 

TolimtarUy  causing  hurt  to       .1         n*     t  i»  i  •    vj    .1 

deter  pubUoserrant  from  hia      tllO    discharge    01   hlsMuty    aS 

^^^'  such  public  servant,  or  vrith 

intent  to  prevent  or  deter  that  person  or  any  other 
public  servant  from  discharging  his  duty  as  such 
public  servant,  or  in  consequence  of  anything  done  or 
attempted  to  be  done  by  that  person  in  the  lawful 
discharge  of  his  duty  as  such  public  servant,  shall  be 
punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  three  years,  or  with 
fine,  or  with  both. 

333.  Whoever  voluntarily  causes  grievous  hurt  to 

any  person  being  a  public  ser- 
ous h^^  to  ^tlr  puluol!erI  vaut  in  the  discharge  of  his 
▼ant  from  his  duty.  ^^^^  ^^  ^^^^  public  servaut,  or 

with  intent  to  prevent  or  deter  that  person  or  any 
other  public  servant  from  discharging  his  duty  as  such 
public  servant,  or  in  consequence  of  any  thing  done 
or  attempted  to  be  done  by  that  person  in  the  lawful 
discharge  of  his  dutv  as  such  public  servant,  shall  be 
punished  with  imprisonment  of  either  description  for 

2q 


J98  CHAPTER  XVI. 

a  term  which  may  extend  to  ten  years,  and  shall  also 
be  liable  to  fine. 

The  hart  or  grievoas  hart  is  to  a  public  servant  in  the  lawful 
discharge  of  his  duty^  or  in  order  to  deter  him  from  it^  or  in 
consequence  of  it. 

Such  public  servants  as  officers  of  justice,  while  in  the  execu- 
tion of  their  offices,  are  under  the  peculiar  protection  of  the 
law.  Without  this  special  protection,  the  public  tranquillity 
cannot  be  maintained  or  private  property  secured ;  nor  in  the 
ordinary  course  of  things  can  offenders  be  made  amenable  to 
justice.  This  protection  is  not  confined  to  the  moment  during 
which  the  public  servant  is  upon  the  spot  and  at  the  scene  of 
action  engaged  in  the  business  which  brought  him  thither,  fie 
is  under  the  same  protection  of  the  law  while  proceeding  to 
the  place,  while  remaining  there,  and  while  returning  from  it. 

The  protection  which  the  law  thus  affords  to  these  public 
servants  is  not,  it  seems,  confined  to  them,  but  extends  to  per- 
sons acting  in  good  faith  by  their  directions. 

But  when  public  servants  step  beyond  the  limits  of  the  law, 
they  wholly  forfeit  the  protecton  and  privilege  which  it  confers 
on  them.  Nevertheless  while  they  act  in  good  faith  they  are  to 
some  extent  protected  (see  Sections  78,  79);  and  for  their  se- 
curity the  right  of  private  defence  is  within  certain  prescribed 
limits  taken  away  when  a  public  servant  acts  in  good  faith 
under  colour  of  his  office,  though  his  act  may  not  be  strictly 
justifiable  by  law  (Section  99). 

See  also,  as  to  obstructing  &c.  public  servants.  Sections  152, 
186  and  353. 

334.    Whoever  voluntarily  causes  hurt  on  grave 
Voluntarily  cauiing  hurt  on    and  suddou  provocatiou,  if  he 
provocation.  neither  intends  nor  knows  him- 

self to  be  likely  to  cause  hurt  to  any  person  other 
than  the  person  who  gave  the.  provocation,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  t^m  which  may  extend  to  one  month,  or  with  fine 


Causing  hurt.  299 

xvhich  may  extend  to  five  hundred  Rupees,  or  with 
both. 

335.  Whoever  causes  grievous  hurt  on  grave  and 
oausiM  grieroos  hupt  on    suddeu  provocatiou,  if  he  nei- 

ppoTo<»aon.  ^j^^j.  intends  nor  knows  himself 

to  be  likely  to  cause  grievous  hurt  to  any  person  other 
than  the  person  who  gave  the  provocation,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  four  years,  or  with  fine 
which  may  extend  to  two  thousand  Rupees,  or  with 
both. 

Explanation.  The  last  two  Sections  are  subject  to 
the  same  provisoes  as  Exception  1,  Section  300. 

The  punishment  is  mitigated  because  the  hurt  is  caused  ou 
grave  and  sudden  provocation.  Causing  grievous  hurt  on  grave 
and  sudden  provocation  is  punishable  more  severely  than  cans* 
ing  hurt  not  grievous  on  such  provocation.  The  provisions 
on  this  subject  are  framed  on  the  same  principles  on  which  the 
corresponding  portion  of  the  law  of  Culpable  Homicide  has 
been  framed. 

In  Section  335,  the  word  "  voluntarily*'  seems  to  have 
been  inadvertently  omitted. 

Hitherto  cases  in  which  hurt  has  been  voluntarily  caused 
has  been  provided  for.  But  hurt  may  be  caused  involuntarily 
yet  culpably.  There  may  have  been  no  design  to  cause  hurt, 
no  expectation  that  hurt  would  be  caused.  Yet  there  may 
have  been  a  want  of  due  care  not  to  cause  hurt.  For  these 
cases  of  the  involuntary,  yet  culpable,  infliction  of  bodily  hurt, 
and  also  for  the  like  cases  of  causing  risk  of  hurt,  the  following 
Sections  are  provided. 

336.  Whoever  does  any  act  so  rashly  or  negligent- 

ly as  to  endanger  human  life  or 

endangers ^eorthepmoz^  the  pcrSOnal  Safety  of  OthcrS, 
«rfety  of  other..  ^^^^  ^^  punishcd  with  impri- 

sonment  of  either  description  for  a  term  which  may 
2  Q  2 


300  CHAMEU  XVf. 

extend  to  three  months,  or  with  fine  which  may  extend 
to  two  hundred  and  fifty  Rupees,  or  with  both. 

Many  specific  acts  of  rashness  or  negligence  likely  to  endan- 
ger Hfe  or  to  cause  hurt  or  injury^  are  made  punishable  by  a 
previous  chapter  (Chapter  XIY.). 

This  Section  punishes  similar  acts^  of  whatever  kind^  which 
cause  risk  to  human  life  or  to  the  persoual  safety  of  others^  al- 
tiiough  no  hurt  may  have  been  caused  thereby. 

337.  Whoever  causes  hurt  to  any  person  by  doing 

any  act  so  rashly  or  negligent- 
^dKSr?ufe^o?^tS?«^^  ly  as  fo  endanger  human  life 
of  othera.  ^^  ^j^^  personal  safety  of  others, 

shall  be  punished  with  imprisonment  of  either  descrip- 
tion for  a  term  which  may  extend  to  six  months,  or 
with  fine  which  may  extend  to  five  hundred  Rupees, 
or  vdth  both^ 

338.  Whoever  causes  grievous  hurt  to  any  person 
^  ^ .        ^  ^  ^         by  doing  any  act  so  rashly  or 

iwtwhi^  endangers  life  op    negligently  as  to  endanger  hu- 

tlioBafMy  of  others.  ^    T-i?  j.1.  i       /•  x_ 

man  life  or  the  personal  safety 
of  others,  shallbe  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  two  years, 
or  with  fine  which  may  extend  to  one  thousand  Ku- 
pees,  or  with  both. 

See  the  note  to  Section  336. 

In  these  Sections  an  enhanced  punishment  is  given^  if  the 
rash  or  negligent  act  causes  hurt  of  any  description. 

The  offence  made  punishable  by  these  three  Sections  is  the 
doing  of  an  act  so  rashly  or  negligently  as  to  put  in  peril  the 
lives  and  safety  of  others ;  but  without  an  intention  of  causing 
hurt,  or  any  knowledge  that  hurt  is  likely  to  be  thereby  caused. 


or   WRONGFUL   BBSTBAINT,   &C. 

The  provisions   under  this  head  are  for  the  punishment  of 
offences^  in  which  the  offender,  although  he  may  have  no  design 


WEONGIUL  RESTRAINT.  301 

against  human  life^  and  no  intention  to  inflict  bodily  hurt, 
either  wholly  deprives  the  injured  person  of  his  freedom,  or 
in  some  degree  abridges  his  personal  liberty.  The  personal 
restraint  or  confinement  may,  in  some  cases,  be  so  slight  as  to 
deserve  little  more  than  a  nominal  punishment ;  but  the  arbi- 
trary imprisonment  of  a  person,  which  is  often  a  quiet  and 
convenient  mode  of  persecuting  him,  is  a  most  serious  offence, 
deserving  of  exemplary  punishment. 

389.    Whoeyer  voluntarily  obstructs  any  pers(Jn  so 

proceeding  m  any  direction  in 
lyhieh  that  person  has  a  right  to  proceed,  is  said 
wrongfully  to  restrain  that  person. 

Exception.  The  obstruction  of  a  private  way  over 
land  or  water  which  a  person  in  good  faith  believes 
himself  to  have  a  lawful  right  to  obstruct,  is  not  aft 
offence  within  the  meaning  of  this  Section. 

Illustration. 

A  obstructs  a  path  along  which  Z  has  a  right  to  pass,  A 
not  believing  in  good  faith  that  he  has  a  right  to  stop  the  path. 
Z  is  thereby  prevented  from  passing.     A  wrongfully  restrains  Z. 

An  obstruction  made  by  a  person  who  acts  in  good  faith  in 
the  supposed  exercise  of  any  right  is  not  an  offence.  And  it 
is  not  apparent  whj  the  exception  appended  to  the  definition^ 
is  confined  to  the  case  of  obstructing  a  private  way. 

The  obstruction  must  be  voluntary  :  that  is^  the  act  or  the 
illegal  omission  which  causes  it  must  be  intended  or  known  to 
be  likely  to  obstruct.  If  there  is  this  intention  or  knowledge^ 
it  is  not  necessary  that  there  should  be  actual  obstruction  by 
physical  means^  by  some  act  done^  &c. 

A  person  may  obstruct  another  by  causing  it  to  appear  to 
that  other  impossible^  difficulty  or  dangerous  to  proceed^  as 
well  as  by  causing  it  actually  to  be  impossible,  difficult  or 
dangerous  for  that  other  to  proceed. 

The  following  cases,  taken  from  the  Code  as  originally  fram- 
ed, illustrate  this  Section. 


302  CHAPTER  XVI. 

A  illegally  omits  to  take  proper  order  with  a  farious  buffalo 
which  is  in  his  possession  (see  Section  289),  and  thus  voluntari- 
ly  deters  Z  from  passing  along  a  road  along  which  Z  has  a 
right  to  pass.     A  wrongfully  restrains  Z. 

A  threatens  to  set  a  savage  dog  at  Z,  if  Z  goes  along  a  path 
along  which  Z  has  a  right  to  go,  Z  is  thus  prevented  from 
going  along  that  path.     A  wrongfully  restrains  Z. 

In  the  last  illustration,  if  the  dog  is  not  really  savage  but 
if  A  voluntarily  causes  Z  to  think  that  it  is  savage,  and  thereby 
prevents  Z  from  going  along  the  path, — A  wrongfully  re- 
strains  Z. 

340.  Whoever  wrongfully  restrains  any  person  in 
^     _^,     ^  such  a  manner  as  to  prevent 

that  person  from  proceedmg 
beyond  certain  circumscribing  limits,  is  said  "  wrong- 
fujly  to  confine"  that  person. 

Illustrations. 

(a)  A  causes  Z  to  go  within  a  walled  space,  and  locks  Z  in,  Z  is  thus 
prevented  from  proceeding  in  any  direction  beyond  the  circumscribing 
line  of  wall.     A  wrongfully  confines  Z. 

(6)  A  places  men  with  fire-arms  at  the  outlets  of  a  building  and 
tells  Z  that  they  will  fire  at  Z,  if  Z  attempts  to  leave  the  building. 
A  wrongfully  confines  Z. 

In  illustration  (a)  if  there  is  in  some  nook  of  the  walled 
space  a  door  which  is  not  secured,  but  which  may  easily  escape 
observation, — as  A  had  voluntarily  caused  it  to  appear  to  Z  im- 
possible to  proceed  beyond  the  line  of  wall,  A  has  wrongfully 
confined  Z« 

341.  Whoever  wrongfully  restrains  any  person 
pimishmeiit  for  wrongful     stall  be  puuished  wlth  simple 

restraint.  Imprisonment  for  a  term  which 

may  extend  to  one  month,  or  with  fine  which  may 
extend  to  five  hundred  Rupees,  or  with  both. 

The  offence  of  wrongful  restraint,  which  consists  in  the 
keeping  a  man  out  of  a  place  where  he  wishes  to  be  and  has 
a  right  to  be,  when  it  does  not  amount  to  wrongful  confine- 


WRONGrUL  RESTRAINT.  303 

ment  and  when  it  is  not  accompanied  with  violence  or  with 
the  causing  of  bodily  hurt^  is  seldom  a  serious  offence.  It  is 
therefore  visited  with  a  light  punishment. 

342.  Whoever    wrongfully  confines  any    person 
ptmiahment  for  wpongftii    shall  be  ptuiished  with  impri- 

oonflnement.  sonment  of  either  description 

for  a  term  which  may  extend  to  one  year,  or  with 
fine  which  may  extend  to  one  thousand  Rupees,  or 
with  both. 

This  Section  pnnishes  the  offence  defined  by  Section  340. 
Wrongful  confinement,  which  is  a  form  of  wrongful  restraint,  ia 
(he  keeping  a  man  within  limits  out  of  which  he  wishes  to  go, 
and  has  a  right  to  go.  It  may,  like  wrongful  restraint,  be  a 
sb'ght  offence.  But  when  attended  by  aggravating  circumstances 
it  may  be  one  of  the  most  serions  that  can  be  committed. 

343.  Whoever  wrongfully  confines  any  person  for 
wrongftd  oonflnement  for    three  days  or  morc,  shall  be 

three  or  more  days.  punishcd  with  imprisonment 

of  either  description  for  a  term  which  may  extend 
to  two  years,  or  with  fine,  or  with  both. 

One  aggravating  circumstance  in  this  offence  of  wrongful 
confinement  is  the  duration  of  the  confinement.  Confinement 
for  a  quarter  of  an  hour  may  possibly  be  a  mere  frolic, 
deserving  only  a  nominal  punishment.  It  may  indeed  be  so 
harmless  as  not  to  amonnt  to  an  offence  (see  Section  95).  But 
the  like  confinement  if  continued  for  a  length  of  time  may  come 
to  be  a  very  serious  offence. 

"  For  three  days  or  more.*'  See  the  next  Section  :  the  words 
''  less  than  ten'^  are  not  to  be  understood  here.  In  this  as  in 
many  other  instances  the  definition  of  the  lower  offence  is  made 
to  include  the  cases  which  fall  within  the  definition  of  the  cog- 
nate higher  offence. 

344.  Whoever  wrongfully  confines  any  person  for 
wromtftii  oonflnement  for    *«»   days  or  morc,   shall    be 

tenormopedayt.  punishcd  with  imprisonment 


304  CHAPTER  XYI. 

of  either  description  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  fine. 

345.  Whoever  keeps  any  person  in  wrongful  con* 
«r     -^,       ^         .    ^    finement,  knowing  that  a  writ 

Wrongful  oonfinement    of      «       . ,      , .,  . .       ^  /•    j  i     j 

person  fbr  whose  Uberation  a  for  the  liberation  01  that  pcr- 
writ  lias  been  issued.  ,        ,  i    i     •  i       i     i-i 

son  has  been  duly  issued,  shall 
be  punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  two  years  in  adcUtion 
to  any  term  of  imprisonment  to  which  he  may  be 
liable  under  any  other  Section  of  this  Chapter. 

This  is  another  circumstance  of  aggravation.  The  offender 
persists  in  wrongfnlly  confining  a  person  notwithstanding  an 
order  issued  by  a  competent  authority  for  the  liberation,  or  for 
(he  production,  of  such  person. 

Jailers  and  other  pubUc  servants  would  appear  to  be  pun- 
ishable for  disobedience  to  a  writ  under  such  provisions  as  those 
contained  in  Sections  166  and  220,  as  weU  as  under  this  Section. 

In  the  Supreme  Courts  the  writ  of  Habeas  Corpus,  requires 
a  return  of  the  body  of  a  person  who  is  confined,  and  the  cause 
of  his  detention,  in  order  that  he  may  be  set  free  if  he  is  unlaw- 
fully detained.  In  other  Courts  the  writ  of  liberation  which 
the  Section  mentions,  must  be  duly  issued  according  to  the 
manner  which  may  be  prescribed  by  the  Criminal  Code  of  Pro- 
cedure, or  such  other  law  as  may  hereafter  be  enacted  on  this 
subject. 

346.  Whoever  wrongfully  confines  any  person  in 
wrongftd  oonfinement  in    s^^^  manner  as  to  indicate  an 

"®^®^  intention  that  the  confinement 

of  such  person  may  not  be  known  to  any  person 
interested  in  the  person  so  confined,  or  to  any  public 
servant,  or  that  the  place  of  such  confinement  may 
not  be  known  to  or  discovered  by  any  such  person  or 
public  servant  as  hereinbefore  mentioned,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  two  years  in  addition  to 
any  other  punishment  to  which  he  may  be  liable  for 
such  wrongful  confinement. 


WRONGFUL  CONFINEMENT.  306 

The  offence  consists  in  wrongful  confinement^  aggpravated  by 
tbe  offender's  endeavonr  to  deprive  bis  prisoner  and  tbose 
interested  in  bim  or  bound  to  protect  bim^  of  tbe  remedies 
wbicb  tbe  law  gives  against  tbis  wrong. 

Tbis  intention  of  tbe  offender  is  not  expressly  made  part  of 
tbe  definition.  But  tbe  words  ''in  snob  a  manner  as  to 
indicate  cm  mtention  tbat^'  &c,,  sboald  perbaps  be  understood  to 
make  tbis  intention  a  part  of  tbe  defined  offence. 

347.  Whoever  wrongfully  confines  any  person  for 

WrongftU  oonflnement  for      t^^  purpOSO  of  extorting  from 

^^f^T^'^Sit^^^^^S^  the  person  confined,  or  from 
niegaiaot.  ^j^j  porson  interested  in  the 

person  confined,  any  property  or  valuable  security, 
or  of  constraining  the  person  confined  or  any  person 
interested  in  such  person  to  do  any  thing  illegal  or  to 
give  any  information  which  may  facilitate  the  com- 
mission of  an  offence,  shall  be  punished  with  impri- 
sonment of  either  description  for  a  term  which  may 
extend  to  three  years,  and  shall  also  be  liable  to  fine. 

See  tbe  note  to  Section  327. 

348.  Whoever  wrongfully  confines  any  person  for 

the  purpose  of  extorting  from 
ti^^  Sf^Si^n-  ^^^  person  confined  or  any  per- 
^^^t^nltlto^rt^^  '^"    son  interested  in  the  person 

confined,  any  confession  or  any 
information  which  may  lead  to  the  detection  of  an 
offence  or  misconduct,  or  for  the  purpose  of  con- 
straining the  person  confined  or  any  person  interested 
in  the  person  confined  to  restore  or  to  cause  the  re- 
storation of  any  property  or  valuable  security  or  to 
satisfy  any  claim  or  demand,  or  to  give  information 
which  may  lead  to  the  restoration  of  any  property  or 
valuable  security,  shall  be  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
three  years,  and  shall  also  be  liable  to  fine. 

See  tbe  note  to  Sections  330  and  331. 
2  B 


306  CHAPTER  XVI. 

OF  ASSAULT,    &C. 

A  large  proportion  of  the  acts  designated  as  assaults^  will  also 
be  offences  falling  under  the  heads  of  hurt  and  restraint* 
Thus^  a  stab  with  a  knife  is  an  offence  falling  under  the  head  of 
hurt^  and  it  is  also  an  assaulir.  The  seizing  a  man  by  the  collari 
and  thus  preventing  him  from  proceeding  on  his  way^  is  un^ 
lawful  restraint^  and  is  also  an  assault.  But  there  will  be 
many  assaults,  which  it  is  absolutely  necessary  to  punish,  yet 
which  cause  neither  bodily  hurt  nor  unlawful  restraint.  A 
man  who  impertinently  puts  his  arm  round  a  lady^s  waist,  who 
aims  a  severe  stroke  at  a  person  with  a  horsewhip,  who  ma- 
liciously throws  a  stone  at  a  person,  squirts  dirty  water  over  him, 
or  sets  a  dog  at  him,  may  cause  no  hurt  and  no  restraint, — 
yet  it  is  evident  that  such  acts  ought  to  be  prevented. 

The  elaborate  explanations  given,  in  the  first  three  Sections, 
of  the  words  "  to  use  force,''  "  to  use  criminal  force,''  and  to 
commit  "  an  assault"  should  be  carefully  read.  And  the 
Illustrations  will  render  every  part  of  these  explanations  in- 
telligible to  an  attentive  reader. 

In  defining  criminal  force  and  assault,  it  has  been  thought 
necessary  to  explain  what  is  meant  by  the  words  *'  to  use  force."* 
Then  follows  the  definition  of  the  two  offences  just  mentioned, 
which  appear  to  correspond  to  the  offences  known  to  the  Eng- 
lish law  respectively,  as  assault,  and  as  assault  and  battery. 

349.  A  person  is  said  to  use  force  to  another  if  he 
causes  motion,  change  of  mo- 
tic^,  or   cessation  of  motion 


*  It  is  to  the  elaborate  explanation  given  of  these  words  that  the  framers  of  the 
Code  appear  specially  to  refer  when,  speaking  of  the  definition  of  the  offenoe 
which  is  here  mJled  "  criminal  force,"  bat  which  in  the  original  Code  was  called 
*< assault"  they  say, — "We  have  found  great  difficulty  in  giving  a  definition, 
and  are  by  no  means  satisfied  with  that  which  we  now  offer.  As,  however,  it  at 
present  appears  to  us  to  include  all  that  we  mean  to  include,  and  to  exclude  all 
that  we  mean  to  exclude,  we  have  adopted  it  in  spite  of  the  objections  which  wo 
feel  to  its  harsh  and  quaint  phraseology.  We  have  adopted  it  with  the  les6 
scruple,  because  we  trust  that  the  illustrations  will  render  every  part  of  it  intel- 
ligible to  an  attentive  reader/' 


Porce. 


CBIMINAL   FORCE.  307 

to  that  other,  or  if  he  causes  to  any  suhstance  such 
motion,  or  change  of  motion,  or  cessation  of  motion 
as  brings  that  substance  into  contact  with  any  part 
of  that  other's  body,  or  with  anything  which  that 
other  is  wearing  or  carrying,  or  with  anything  so 
situated  that  such  contact  affects  that  other's  sense 
of  feeling;  provided  that  the  person  causing  the 
motion,  or  change  of  motion,  or  cessation  of  motion, 
causes  that  motion,  change  of  motion,  or  cessation  of 
motion  in  one  of  the  three  ways  hereinafter  described : 

Mrst. — By  his  own  bodily  power. 

Secondly. — By  disposing  any  substance  in  such  a 
manner  that  the  motion  or  change  or  cessation  of  mo- 
tion takes  place  without  any  further  act  on  his  part, 
or  on  the  part  of  any  other  person. 

Thirdly. — By  inducing  any  animal  to  move,  to 
change  its  motion,  or  to  cease  to  move. 

350.  Whoever  intentionally  uses  force  to  any  per- 
son, without  that  person's  con- 
cwminai  force.  ^^^^  ^  ordcr  to  the  Commit- 

ting of  any  offence,  or  intending  by  the  use  of  such 
force  to  cause,  or  knowing  it  to  be  lU^ely  that  by  the 
use  of  such  force  he  will  cause  injury,  fear,  or  annoy- 
ance to  the  person  to  whom  the  force  is  used,  is  said 
to  "  use  crinunal  force"  to  that  other. 

nitutratioM, 

(a)  Z  is  sitting  in  a  moored  boat  on  a  river.  A  unfastens  the 
moorings,  and  thus  intentionally  causes  the  boat  to  drift  down  the 
stream.  Here  A  intentionally  causes  motion  to  Z,  and  he  does  this  by 
disposing  substances  in  such  a  manner  that  the  motion  is  produced 
without  any  other  act  on  any  person^s  part.  A  has  therefore  inten- 
tionally used  force  to  Z  ;  and  if  he  has  done  so  without  Z's  consent, 
in  order  to  the  committing  of  any  offence,  or  intending  or  knowing 
it  to  be  likely  that  this  use  offeree  will  cause  injury,  fear,  or  annoy- 
ance to  Z,  A  has  ussd  criminal  force  to  Z. 

(b)  Z  is  riding  in  a  chariot.  A  lashes  Z's  horses,  and  thereby 
causes  them  to  quicken  their  pace.  Here  A  has  caused  change  of 
motion  to  Z  by  inducing  animals  to  change  their  motion.  A  has 
therefore  used  force  to  Z  ;  and  if  A  has  done  this  without  Z's  consent, 
intending  or  knowing  it  to  be  likely  that  he  may  thereby  injure, 
frighten,  or  annoy  Z,  A  has  used  criminal  force  to  Z. 

(c)  Z  is  riding  in  a  palanquin.  A,  intending  to  rob  Z,  seizes  the 
pole,  and  stops  the  palanquin.     Here  A  has  caused  cessation  of  mo- 

2  R  2 


308  Chapter  xvi. 

tion  to  Z,  and  he  has  done  this  hy  his  own  bodily  power.  A  hag 
therefore  used  force  to  Z ;  and  as  A  has  acted  thus  intentionally, 
without  Z*s  consent,  in  order  to  the  commission  of  an  offence,  A  has 
used  criminal  force  to  Z. 

(d)  A  intentionally  pushes  against  Z  in  the  street.  Here  A  has 
by  his  own  bodily  power  moved  his  own  person  so  as  to  bring  it  into 
contact  with  Z  :  he  has  therefore  intentionally  used  force  to  Z ;  and 
if  he  has  done  so  without  Z*s  consent,  intending  or  knowing  it  to  be 
likely  that  he  may  thereby  injure,  frighten,  or  annoy  Z,  he  has  used 
criminal  force  to  Z. 

(e)  A  throws  a  stone  intending  or  knowing  it  to  be  likely  that  the 
stone  will  be  thus  brought  into  contact  with  Z,  or  with  Z's  clothes, 
or  with  something  carried  by  Z,  or  that  will  strike  water  and  dash 
up  the  water  against  Z's  clothes,  or  something  carried  b^  Z.  Here, 
if  the  throwing  of  the  stone  produce  the  effect  of  causmg  any  sub- 
stance to  come  into  contact  with  Z  or  Z*s  clothes,  A  has  used  force  to 
Z  ;  and  if  he  did  so  without  Z*s  consent,  intending  thereby  to  injure, 
fr^hten,  or  annoy  Z,  he  has  used  criminal  force  to  Z. 

Xf)  A  intentionally  pulls  up  a  woman's  veil.  Here  A  intentionally 
uses  force  to  her ;  and  if  he  does  so  without  her  consent,  intending 
or  knowing  it  be  likely  that  he  may  thereby  injure,  frighten,  or  annoy 
her,  he  has  used  criminal  force  to  her. 

(y)  Z  is  bathing.  A  pours  into  the  bath  water  which  he  knows  to 
be  boiling.  Here  A  intentionally  by  his  own  bodily  power  causes 
such  motion  in  the  boiling  water  as  brings  that  water  into  contact 
with  Z,  or  with  other  water  so  situated  that  such  contact  must  affect 
^*s  sense  of  feelmg :  A  has  therefore  intentionally  used  force  to  Z ; 
and  if  he  has  done  tlfis  without  Z*s  consent,  intending  or  knowing  it 
to  be  likely  that  he  may  thereby  cause  injury,  fear,  or  annoyance  to 
Z,  A  has  used  criminal  force. 

(A)  A  incites  a  dog  to  spring  upon  Z  without  Z's  consent.  Here 
if  A  intends  to  cause  injury,  fear,  or  annoyance  to  Z,  he  uses  criminal 
force  to  Z. 

This  definition  of  criminal  force  appears  to  include  what 
is  termed  by  the  English  law  "  battery/'  that  is,  any,  even  the 
least,  hurt  or  violence  inflicted  on  the  person  of  another. 

If  there  is  the  use  of  force  as  defined  in  the  preceding  Sec- 
tion, and  this  is  intentional  on  his  part  who  uses  it,  and  is  also 
without  the  consent  of  the  person  against  whom  it  is  used,  such 
pse  of  force  becomes  criminal,  when  it  has  for  its  object  the 
commission  of  an  offence  (see  Section  49),  the  causing  of  injury 
(see  Section  44),  or  the  causing  of  fear  or  annoyance. 

It  will  be  observed  that  the  definition  of  the  offence  does 
pot  include  anything  thc^t  the  doer  4oes  by  means  of  another 
person. 


ASSAULT.  809 

351.  Whoever  makes  any  gesture,  or  any  prepa* 
ration,  intending  or  knowing 
it  to  be  likely  that  such  gesture 
or  preparation  will  cause  any  person  present  to  appre- 
hend that  he  who  makes  that  gesture  or  preparation 
is  about  to  use  criminal  force  to  that  person,  is  said  to 
commit  "  an  assault." 

JExplanation.  Mere  words  do  not  amount  to  an 
assault.  But  the  words  which  a  person  uses  may  give 
to  his  gestures  or  preparations  such  a  meaning  as 
may  make  those  gestures  or^preparations  amount  to 
an  assault. 

UlustratioM. 

(a)  A  shakes  hiB  fist  at  Z,  intending  or  knowing  it  to  be  likely 
that  he  may  thereby  cause  Z  to  believe  that  A  is  about  to  strike  i. 
A  has  committed  an  assault. 

(b)  A  begins  to  unloose  the  muzzle  of  a  ferocious  dog,  intending  or 
knowing  it  to  be  likely  that  he  may  thereby  cause  Z  to  believe  that 
he  is  about  to  cause  the  dog  to  attack  Z.  A  has  committed  an  assault 
upon  Z. 

(c)  A  takes  up  a  stick,  saying  to  Z,  "  I  will  give  you  a  beating.** 
Here,  though  the  words  used  by  A  could  in  no  case  amount  to  an 
assault,  and  though  the  mere  gesture  unaccompctnied  by  any  other 
circumstances,  might  not  amount  to  an  assault,  the  gesture  explained 
by  the  words  may  amount  to  an  assault. 

An  assault  is  something  less  than  the  nse  of  criminal  force, 
the  force  being  cut  short  before  the  blow  actually  falls.  It  seems 
to  consist  in  an  attempt  or  offer  by  a  person  having  present 
ability  with  force  to  do  any  hurt  or  violence  to  the  person  of 
another.  And  it  is  committed  whenever  a  well-founded  appre- 
hension of  immediate  peril  from  a  force  already  partially  or 
fully  put  in  motion  is  created.  An  assault  is  included  in  every 
use  of  criminal  force. 

Mere  words^  it  is  explained,  do  not  amount  to  an  assault. 
Such  acts  as  the  following, — a  blow  which  is  purely 
accidental,  an  injury  received  in  playing  at  any  lawful  sport  by 
consent,  reasonable  chastisement  of  a  child  by  his  parent  or 
guardian,  or  of  a  scholar  by  his  schoolmaster,  a  blow  or  other 
violence  in  self-defence,  the  use  offeree  by  a  public  servant  with- 


310  CHAPTER  XVI. 

in  the  sphere  of  his  dnty^  force  used  in  defence  of  a  man's  pro- 
perty, and  the  like, — are  not  offences,  either  under  the  head  of 
criminal  force  or  assault,  or  under  any  other  provision  of  the 
Code.  By  the  Chapter  of  General  Exceptions,  such  acts  are 
saved  from  being  accounted  offences. 

352.    tVTioever  assaults  or  uses  criminal  force  to 
any  person  otherwise  than  on 

Punishment  for  usine  orl-  "    *  j         jj  i* 

minal  force  otherwise  than  on      graVO  and  SUddcn  prOYOCatlOn 

grave  provocation.  given  by  that  pcrsou,  shall  be 

punished  with  imprisonmnent  of  either  description  for 
a  term  which  may  extend  to  three  months,  or  with 
fine  which  may  extend  to  five  hundred  !&/upees,  or 
with  both. 

Ea^plcmation. — Grave  and  sudden  provocation  will 
not  mitigate  the  punishment  for  an  offence  under  this 
Section  if  the  provocation  is  sought  or  voluntarily  pro- 
voked by  the  offender  as  an  excuse  for  the  offence ;  or 

If  the  provocation  is  given  by  any  thing  done  in 
obedience  to  the  law  or  by  a  public  servant  in  the 
lawful  exercise  of  the  powers  of  such  public  servant ;  or 

If  the  provocation  is  given  by  any  thing  done  in  the 
lawful  exercise  of  the  right  of  private  defence. 

Whether  the  provocation  was  grave  and  sudden 
enough  to  mitigate  the  offence,  is  a  question  of  fact. 

This  Section  provides  the  ordinary  punishment  for  an  assault, 
or  for  using  criminal  force.  A  mitigation  of  punishment  when 
there  is  grave  and  sudden  provocation,  is  admitted  here  as  in 
teases  of  culpable  homicide  and  of  hurt.  The  several  General 
Exceptions  concerning  the  right  of  private  defence,  acts  done 
by  consent,  Ac.,  should  be  borne  in  mind. 

363.  Whoever  assaults  or  uses  criminal  force  to  any 
\..    ^  .   w      *  ^  *^,    person beingapublicservant in 

Using  criminal  force  to  deter      f,  x-  i?  i  •       i    ^ 

s  public  servant   from   dis-      tnC    CXCCUtlOn    01  UlS    duty    aS 

charge  of  his  duty.  ^^^^  pubUc  scrvaut,  or  with 

intent  to  prevent  or  deter  that  person  from  discharg- 
ing his  duty  as  such  public  servant,  or  in  consequence 
of  any  thing  done  or  attempted  to  be  done  by  such 


CRIMINAL   FORCE.  811 

person  in  the  lawful  discharge  of  his  duty  as  such 
public  servant,  shall  be  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
two  years,  or  with  fine,  or  with  both. 

The  assault  is  aggravated  because  a  public  servant  is  the 
object  of  it.  See  the  note  to  Section  332.  To  support  a  charge 
under  this  Section, — ^besides  proof  of  the  assault  or  use  of  crimin- 
al force,  and  that  it  was  used  against  one  who  either  was  or  was 
acting  as  a  public  servant  (see  Section  21,) — it  should  be  shown 
that  the  accused  had  knowledge  of  the  official  character  of  the 
person  assaulted.  It  will  of  course  be  open  to  the  accused  to 
show  illegality  or  excess  on  the  part  of  the  public  servant. 

354.    Whoever  assaults  or  uses  criminal  force  to 
.      ,^  ,  _,  ,    ,     any  woman,  intendinff  to  out- 

_  Assault  or  use  of  oriminal  -^  ,        '.         ...Xt,, 

foroa  to  s  woman  with  intent    raffe  or  Knowinff  it  to  be  likelv 

to  outrage  her  modesty.  ir^^i    i  -n    o^i^      i  x        "^ 

that  he  will  thereby  outrage 
her  modesty,  shall  be  punished  with  imprisonment  of 
either  description  for  a  term  which  may  extend  to  two 
years,  or  with  fine,  or  with  both. 

''  Woman''  is  explained  to  denote  a  female  human  being  of 
any  age.  (See  Section  10.)  An  assault  or  use  of  criminal  force, 
when  it  is  committed  with  the  intention  to  outrage  female 
modesty,  or  with  the  knowledge  that  it  is  likely  to  have  that 
result,  is  severely  punished. 

The  phrase  "  to  outrage  modesty''  is  indefinite ;  and  it  would 
be  an  outrage  to  the  modesty  of  one  woman  to  do  to  her  what 
would  be  thought  nothing  of  by  another.  The  taking  indecent 
liberties  with  females  will  be  punished  by  this  Section  :  but  the 
provision  is  not  confined  to  such  cases.  In  a  country,  where  many 
women  consider  themselves  as  dishonoured  by  exposure  to  the 
gaze  of  strangers,  many  gross  insults  of  a  different  kind,  such  as 
a  man  rudely  thrusting  his  head  into  the  covered  palanquin  of  a 
woman  of  rank,  may  well  be  deemed  to  outrage  female  modesty. 
There  is  a  sufficient  discretion  allowed  in  awarding  punishment 
(which  may  extend  to  two  years  or  may  be  only  ti  nominal  fine), 
to  admit  of  a  due  regard  being  paid  to  a  variety  of  conditions 


812  CHAPTEE  XVI. 

and  circnmstances^  making  the  same  act  less  oifensive  to  one 
person  than  to  another. 

Assaults  committed  with  the  intention  to  commit  rape  are 
not,  it  seems,  here  contemplated. 

Mere  words  or  gestures  of  insult  offered  to  a  woman  are 
made  punishable  by  Section  509. 

365.  Whoever  assaults  or  uses  criminal  force  to 

any  person,  intending  thereby 
J^^nno'^^^ril'S^.  to  dishonor  that  person,  other- 
SSSvSSti^."''  **^ ''''  ^^^^    wise  than  on  grave  and  sudden 

provocation  given  by  that  per- 
son, shall  be  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  two  years, 
or  with  fine,  or  with  both. 

The  intention  to  dishonor  may  be  supposed  to  exist  when  the 
assault  or  criminal  force  is  by  means  grossly  insulting,  such 
as  kicking  a  man,  pulling  a  man^s  nose,  or  laying  a  whip  across 
the  shoulders. 

366.  Whoever  assaults  or  uses  criminal  force  to 

A..ault  or  criminal   force      ^^   ^^^1%^   attempting  to 

In  attempt  to  commit  theft  of    commit  theit  ou  auv  propertv 

property  carried  by  a  i>er8on.  ^  •   t    i-t     i  -i^**         ^ 

which  that  person  is  then  wear- 
ing or  carrying,  shall  be  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
two  years,  or  with  fine,  or  with  both. 

The  aggravation  consists  in  the  attempt  to  commit  thefb  on 
J>roperty  which  is  in  personal  use  or  under  personal  protection « 
Attempts  to  pick  pockets  or  to  commit  theft  from  the  person, 
when  the  offence  is  not  completed,  and  even  when  the  offence  . 
could  not  be  completed  (as  where  the  pocket  contains  nothing), 
will  be  punishable  under  this  Section,  if  the  thief  in  his  attempt 
does  any  thing  which  amounts  to  an  assault  or  use  of  criminal 
force. 

Assault  or  the  use  of  criminal  force  in  attempting  murder,  are 
not  made  punishable  under  this  division  or  elsewhere  specifically. 
Kor  are  th^y  made  punishable  when  committed  in  attempts 


KIDNAPPING.  813 

to  eotnmit  sa6li  grave  offences  against  the  persoB  as  kidnapping 
cansing  grievous  hort^  or  rape.  If  the  assault  or  criminal 
force  is  shown  satisfactorily  to  have  been  in  part  execution  of 
a  design  to  commit  any  of  the  offences  abovementioned^  it  will, 
it  seems,  be  punishable  as  an  attempt  to  commit  such  offence  ; 
and  if  the  criminal  force  is  carried  to  such  a  length  as  the 
offender  contemplates  as  sufficient  to  cause  death,  it  falls  within 
Sections  307  and  308,  as  an  attempt  to  commit  murder  or  cul- 
pable homicide. 

357.    Whoever  assaults  or  uses  criminal  force  to 
any    person,    in     attemptinsf 

Assault  or  oriminal  force  in  i»nx  n        xi-i 

attempt  wrongfaUy  to  confine  WronglUlly  tO  COnfinC  tliat  pcr- 
any  person.  ^^^^   ^^^    ^^    punishcd    with 

imprisonment  of  either  description  for  a  term  which 
may  extend  to  one  year,  or  with  fine  which  may 
extend  to  one  thousand  Rupees,  or  with  both. 

368,    Whoever  assaults  or  uses  criminal  force  to 

AssanltinKorusingoriminal      ^^7  perSOU  OU   graVC  and  SUd- 
force  on  grave  provocation.  ^^j^  prOVOCatioU  givCU  by  that 

person,  shall  be  punished  with  simple  imprisonment 
for  a  term  which  may  extend  to  one  month,  or  with 
fine  which  may  extend  to  two  hundred  Rupees,  or 
with  both. 

Explanation.    The  last  Section  is  subject  to  the 
same  explanation  as  Section  352. 


OP  KIDNAPPING,  ABDUCTION,  &C. 

The  former  divisions  of  this  Chapter  of  Offences  against  the 
Human  Body  haye  gradually  led  to  the  present.  Pain  or  hurt 
of  body  is  not  necessarily  a  part  of  the  offences  comprised 
under  this  head.  And  some  of  these  offences  may  be  committed 
without  any  such  abridgement  of  personal  Uberty  as  amounts 
to  wrongful  restraint  or  confinement. 

359.     Kidnapping   is   of  two  kinds :  kidnapping 

from  British  India,  and  kidnap- 

Kidnapping.  ^^^^  ^^^^  lawf ul  guardianship. 

2  s 


814  CHAPTER  XVI. 

360.    Whoever  conveys  any  person  beyond  the 
todnapping  from  Britidi    Umits  of  British  India  without 
^^^  the  consent  of  that  person,  or 

of  some  person  legally  authorized  to  consent  on  behalf 
of  that  person,  is  said  to  kidnap  that  person  from 
British  India. 

The  offence  of  kidnapping  from  British  India  consists^  ac* 
cording  to  this  definition^  in  conveying  any  person  out  of  the 
protection  of  the  law  without  his  consent,  or  the  consent  of 
some  person  legally  authorized  to  consent  on  his  behalf;  or 
with  such  consent,  when  it  is  not  freely  and  intelligently  given^ 
but  is  obtained  by  deception  or  under  any  of  those  circum- 
stances which  have  been  explained  (see  Section  90)  to  invali« 
date  a  consent. 

This  offence  is  sometimes  committed  by  means  of  assault,  and 
is  sometimes  attended  with  restraint.  But  this  will  not  always 
be  the  case.  For  example,  a  labourer  who  has  been  induced  to 
embark  on  board  of  a  ship  by  false  assurances  that  he  shall  be 
taken  to  a  country  where  he  shall  have  good  wages,  but  whom 
the  Captain  of  the  ship  intends  to  sell  for  a  slave,  or  otherwise 
illegally  to  dispose  of,  may  be  conveyed  beyond  the  limits  of 
British  India  and  so  kidns^ped  without  being  either  assaulted 
or  restrained. 

This  offence  may  be  committed  on  a  child,  or  on  a  grown 
man  or  woman.  The  carrying  of  a  grown  up  person  by  force 
from  one  place  in  British  India  to  another,  and  the  enslaving 
him  within  the  British  Territories,  are  offences  sufficiently  pro- 
vided for  under  the  heads  of  restraint  and  confinement. 

The  enticing  a  grown-up  person  by  false  promises  to  go 
frorn  one  place  in  British  India  to  another  place  also  within 
British  India  may  be  a  subject  for  a  civil  action  and  under 
certain  circumstances  for  a  criminal  prosecution.  But  it  does  not 
tK>me  under  the  head  of  kidnapping.  This  offence  can  only 
be  committed  on  a  grown  man  by  conveying  him  beyond  the 
limits  of  the  British  Territories  in  India. 


KIDNAPPING.  315 

The  words  "  Britiah  India'^  in  this  Code  have  been  explained 
to  mean  the  British  Indian  Territories  except  the  Straits^  Settle* 
ment  (see  Section  15). 

361.    Whoever  takes  or  entices  any  minor  under 
Kidnapping  from   i«wM    fourteen  years  of  age  if  a  male, 
guardianahip.  q ^  Under  sixtecu  years  of  age  if 

a  female,  or  any  person  of  unsound  mind,  out  of  the 
keeping  of  the  lawful  guardian  of  such  minor  or  per- 
son of  unsound  mind,  without  the  consent  of  such 
guardian,  is  said  to  kidnap  such  minor  or  person  from 
lawful  guardianship. 

Explanation.  The  words  "lawful  guardian**  in 
this  Section  include  any  person  lawfully  entrusted 
with  the  care  or  custody  of  such  minor  or  other 
person. 

Exception.  This  Section  does  not  extend  to  the 
act  of  any  person  who,  in  good  faith,  believes  himself 
to  be  the  father  of  an  illegitimate  child,  or  who  in 
good  faith  believes  himself  to  be  entitled  to  the  lawful 
custody  of  such  child,  unless  such  act  is  committed 
for  an  immoral  or  unlawful  purpose. 

This  offence  consists  in  taking  a  minor,  or  a  person  of  nnsound 
mind,  oat  of  the  keeping  of  his  lawfnl  guardian,  without  the  con 
fient  of  such  guardian.  This  mode  of  kidnapping,  like  that  defined 
in  the  last  preceding  Section,  may  be  committed  without  assault 
or  the  use  of  criminal  force,  and  without  being  attended  with 
any  restraint.  A  child,  for  example,  who  is  decoyed  from  its 
guardians,  who  soon  forgets  its  home,  and  who  cpnsents  to  re« 
main  with  the  kidnapper,  cannot  be  said  to  have  been  assaulted 
or  restrained,  but  it  is  none  the  less  kidnapped. 

The  consent  of  the  kidnapped  person  is  immaterial,  and  it  is 
not  necessary  that  the  taking  or  enticing  should  be  shown  to 
be  by  means  of  force  or  fraud. 

The  offence  here  defined  is  made  punishable,  in  order  to  pro- 
tect parents  and  others  having  the  lawful  charge  or  custody  of 
minors  or  insane  persons. 

"  Takes  or  entices  out  of  the  keeping  &c.''    There  must,  it 
2  s  2 


816  CHAFTBR  XVI* 

seems  be  a  taking  of  the  child  out  of  the  possession  of  the 
parent.  If  the  child  continues  a  member  of  the  family  and 
under  the  parental  control^  there  is  a  sufficient  keeping  or 
possession ;  and  so  if  a  child  leaves  its  parents^  house  for  a  par. 
ticular  purpose  with  their  consent^  it  cannot  be  said  to  be  out 
of  the  parents^  keeping.  An  adopted  child  would  after  adop- 
tion be  deemed  to  be  in  the  keeping  of  its  adopted^  and  not  of 
its  natural^  parents. 

The  taking  charge  of  a  child  who  has  strayed  from  home, 
or  has  been  lost  and  left  behind  at  a  fair,  or  who  is  an  or- 
phan^— when  this  is  done  from  motives  of  humanity  and  without 
an  intention  to  detain  the  child  ^om  its  lawful  guardians^  if  it 
should  have  auy, — ^is  of  course  not  a  taking  such  as  is  contem- 
plated by  this  Section. 

362,    Whoever  by  force  compels,  or  by  any  deceit- 
ful means  induces,  any  person 
Abduotton.  ^^  g^  j^^^  ^^y  place,  is  said 

to  abduct  that  person. 

This  Section  does  not  define  an  odenoe.  It  is  merely  a  de- 
finition of  the  word  '^  abduction/'  which  occurs  in  some  of 
the  penal  provisions  which  follow. 

Abduction  differs  from  kidnapping,  because  there  may  be 
ebduction  without  a  removal  of  the  person  from  the  protection 
of  the  law,  or  even  from  lawful  guardianship. 

It  may  be  observed  of  the  things  which  constitute  abdncticm 
according  to  this  definition,  that  to  compel  by  force  a  person  to 
go  from  any  place  is  not  an  offence  specifically  under  this  Code, 
although  it  may  necessarily  involve  the  commission  of  an 
offence,  as  assault  at  least,  and  probably  wrongful  restraint. 
To  induce  a  person  by  deceitful  means  to  go  from  any  place 
is  ordinarily  not  an  offence,  but  only  a  subject  for  a  civil 
action.  Neither  of  these  things  are  specifically  punished  as 
offences  here ;  they  merely  constitute  the  definition  of  abduction. 

And  abduction  is  made  an  offence  only  when  it  is  committed 
with  certain  aggravating  circumstances. 


KIDNAPPING.  817 

Suppose  a  crimp  compels  by  force, — or  indnces  by  deception, 
or  concealment,  as  to  their  place  of  destination,  their  future 
treatment,  &c., — a  number  of  coolies  to  leave  their  homes  for 
some  port  of  embarkation  in  British  India:  or  suppose  a 
friendless  and  deserted  child  is  taken  and  detained  by  a  stran- 
ger with  some  evil  intention: — ^whatever  circumstances  of 
aggravation  might  attend  either  of  these  cases,  the  definition  of 
kidnapping  would  not  include  them. 

363.  Whoever  kidnaps  any  person  from  British 
_  ,  ^  _^      ,        India  or  from  lawftd  ffuardian- 

Punishment  for  kidnapping*        v  •  i_    11    v  •  ?     -1         ^^i 

ship,  shall  be  pumshed  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  seven  years,  and  shall  also  be  liable  to 
fine. 

364.  Whoever  kidnaps  or  abducts  any  person  in 
Kidnappincorabdootingin    ordcr  that  such  pcrson  may 

order  to  murder.  |jg  murdcrcd,   or  may  be  so 

disposed  of  as  to  be  put  in  danger  of  being  murdered, 
shgdl  be  punished  with  transportation  for  life  or 
rigorous  imprisonment  for  a  term  which  may  extend 
to  ten  years,  and  shall  also  be  liable  to  fine. 

Ulttstrationt, 

(a)  A  kidnaps  Z  from  British  India^  intending  or  knowing  it  to  be 
likely  that  Z  may  be  sacrificed  to  an  Idol.  A  has  committed  the 
offence  defined  in  this  Section. 

(b)  A  forcibly  carries  or  entices  B  away  from  his  home  in  order 
that  B  may  be  murdered.  A  has  committed  the  offence  defined  in 
this  Section. 

Because  the  kidnapping  or  abduction  is  with  the  intention 
to  murder,  a  punishment  of  corresponding  Beverity  is  annexed. 
The  second  Illustration  is  of  a  case  of  abduction  in  order  to 
murder. 

365.  Whoever  kidnaps  or  abducts  any  person  with 
Kidnapping  or  abducting    intent  to  causo  that  person  to 

?S?ngfa&'to<;SS?S^a^  be  socrctly  and  wrongfuUy 
•^^  confined,    shall    be    punished 

with  imprisonment  of  either  description  for  a  term 


318  CHAPTER  XVI. 

which  may  extend  to  seven  years,  and  shall  also  be 
liable  to  fine. 

An  enhanced  punishment  is  provided  for  kidnapping  or  ab- 
duction, when  the  intention  is  to  commit  the  oflfence  which  is 
made  punishable  by  Section  346,  that  is,  wrongful  confinement 
in  secret. 

366.  Whoever  kidnaps  or  abducts  any  woman 

with  intent  that  she  may  be 

Eidnappinfc  or  abduoting  a  ii    :i  i  •         'x  x     i. 

woman   to  compel  her  mar-      COmpeiieCl,  Or  knOWULg  it  tO  DO 

riage,  Ac  likely  that  she  will  be  compell- 

ed to  marry  any  person  against  her  will,  or  in  order 
that  she  may  be  forced  or  seduced  to  illicit  intercourse, 
or  knowing  it  to  be  likely  that  she  will  be  forced  or 
seduced  to  illicit  intercourse,  shall  be  punished  with 
imprisonment  of  either  description  for  a  term  which 
may  extend  to  ten  years,  and  shall  also  be  liable  to  fine. 

The  will  of  the  woman  may  ultimately  be  gained  over,  but 
this  will  not  afiect  the  offence,  when  the  kidnapping  or  abduc^ 
tion  is  with  the  knowledge  or  intention  which  the  Section 
mentions.  Whoever  kidnaps  or  abducts  any  woman  (see  Sec^ 
tion  10)  having  himself  such  criminal  intention  or  with  a  pur- 
pose or  knowledge  that  she  may  be  forced  to  marry,  or  forced 
or  seduced  to  illicit  sexual  intercourse,  commits  the  offence  hero 
made  punishable. 

367.  Whoever  kidnaps  or  abducts  any  person  in 

order  that  such  person  may  b^ 

Kidnapping  or  abdnotine  in  i.*      j.    j  i.  j* 

order  to  su^eot  a  person  to      SUDjeCteCl,    Or    may    DC    SO    UlS- 

grievous      ,   avery,  poscd  of  as  to  bc  put  in  danger 

of  being  subjected  to  grievous  hurt,  or  slavery,  or  to 
the  unnatural  lust  of  any  person,  or  knowing  it  to  be 
likely  that  such  person  will  be  so  subjected  or  disposed 
of^  shall  be  punished  with  imprisonment  of  either 
description  for  a  term  which  may  extend  to  ten  years, 
and  shall  also  be  liable  to  fine. 

The  kidnapping  or  abduction  of  any  person  whether  male  or 
female  is  punishablQ>  see  Sections  370  and  377« 


DEALING  IN  SLAVES.  319 

368.  Whoever,  knowing  that  any  person  has  been 
oonoaaiing  or  keeping  in    kidnapped  or  has  been  abduct- 

oonflnement a  kidnappedper*         ^  ^     n   n  i 

■on.  ed,  wrongfully  conceals  or  con- 

fines such  person,  shall  be  punished  in  the  same 
manner  as  if  the  offender  had  kidnapped  or  abducted 
such  person  with  the  same  intention  or  knowledge 
or  for  the  same  purpose  as  that  with  or  for  which 
he  conceals  or  detains  such  person  in  confinement. 

To  constitute  the  offence,  the  concealment  or  confinement 
must  be  by  a  person  who  knows  of  the  kidnapping  or  abdnc-* 
tion,  and  must  also  be  wrongfal.  A  concealment  of  one  who 
has  escaped  from  slavery  or  who  endeavours  to  avoid  his  kid- 
nappers who  are  in  pursuit  of  him  is  not  an  offence. 

This  mode  of  abetment  by  aid  is  punishable  in  the  same 
manner  as  the  substantive  offence  which  is  abetted. 

369.  Whoever  kidnaps  or  abducts  any  child  under 

Kidnapping  op  abdnoting  a      ^^^  ^g®  ^^   t^^  ycarS   with  the 

Ct^TtSSpr^oS"^^^  intention  of  taking  dishonestly 
pepwnofsuch^uKi.  ^j^y  movcablc  property  from 

the  person  of  such  child,  shall  be  punished  with  im- 
prisonment of  either  description  for  a  term  which 
may  extend  to  seven  years,  and  shall  be  liable  to  fine* 

Such  offences  as  the  enticing  away  of  children  with  no  inten^^ 
tion  of  taking  them  from  their  parents^  but  for  the  purpose  of 
stealing  ornaments  from  their  persons^  are  punishable  by  this 
Section.    The  consent  of  the  child  is  immaterial. 

370.  Whoever  imports,    exports,  removes,  buys, 
Bnying  op  disposing  of  any     sclls,  or  disposcs  of,  any  pcrson 

person  as  a  slave.  ^^  g,  slaVC,  Or  aCCCpts,  rCCCivCS, 

or  detains  against  his  will  any  person  as  a  slave,  shall 
be  punished  with  imprisonment  of  either  description 
for  a  term  which  may  extend  to  seven  years,  and  shall 
also  be  liable  to  fine. 

The  sale  of  a  person  for  the  purpose  of  being  dealt  with  as 
a  slave  is  not  directly  prohibited  by  Act  V,  of  1843  (for  de- 
claring and  amending  the  law  regarding  the  condition  of 


320  CHAPTER  XVI. 

slavery  within  ihe  Territories  of  the  East  India  Company). 
But  as  by  that  Act  no  person  so  sold  can  be  dealt  with  as  a 
slave  against  his  will  and  no  rights  arising  out  of  an  alleged 
property  in  his  person  and  services  can  be  enforced  by  any 
Court,  the  Act  contains  a  virtual  prohibition  which  may  be 
effectual  as  regards  adults  who  can  avail  themselves  of  the  pro- 
tection of  the  law. 

By  the  present  Section  the  sale  or  disposal  of  any  person  "  as 
a  slave,^^  that  is,  on  the  pretext  of  his  being  in  a  condition  of 
slavery,  is  made  punishable  as  an  offence. 

The  Clause  extends  not  only  to  those  immediately  concerned 
in  the  contract  of  sale  or  disposal,  but  extends  to  those  who 
aid  them  by  knowingly  conveying  or  removing  the  person 
who  is  the  subject  of  the  bargain,  or  by  knowingly  receiving  or 
detaining  such  person  as  a  slave. 

The  Section  is  general  and  prohibits  the  traffic  in  all 
human  beings,  whether  children  of  tender  years  or  adults. 
It  frequently  happens  thatp  ersons  in  time  of  famine,  or  when 
reduced  to  extreme  destitution  from  other  causes,  dispose  of 
their  children  in  exchange  for  grain  or  money  in  order  to  save 
themselves  as  well  as  the  children  from  starvation.  It  is  said 
that  the  Hindoo  law  empowers  parents  (but  no  other  persons,) 
to  sell  or  barter  their  offspring  under  such  circumstances; 
and  it  is  certain  that,  in  seasons  of  calamity,  the  practice  of 
purchasing  and  selling  children  saves  a  great  number  from 
starvation.  At  other  times  parents  dispose  of  their  young 
children  to  dancing  girls,  or  to  people  of  certain  castes  who 
either  purchase  or  receive  them  in  gift  to  bring  them  up  to 
their  trade  or  calling. 

The  Section  does  not  extend  to  the  punishment  of  parents  for 
the  mere  sale  or  disposal  of  their  children.  The  offence  which 
this  Section  prohibits  is  the  sale  or  disposal  of  a  child  or  other 
person  '^  as  a  slave.''  There  may  be  lawful  contracts  for  the 
transfer  of  a  child  by  its  parents  either  for  a  time  or  perma- 
nently to  another  person ;  as  in  the  case  of  a  child  whose  parents 
permit  it  to  be  adopted  by  others,  or  in  the  case  of  a  child  who  is 


DEALING  IN   SI/AVES.  821 

apprenticed  or  put  ont  for  a  time  to  learn  a  lawful  trade  or 
calling,  &c«  These,  it  is  needless  to  say,  are  not  ofifences  against 
this  or  any  other  Section  of  the  Code.  Bat  care  diould  be 
taken  that  the  law  is  not  eluded  by  somte  device  or  pretence  of 
a  contract.  When  the  substance  of  the  transaction  is  an  attempt 
to  give  a  property  in  the  person  and  services  of  a  human  being, 
that  person  is  disposed  of  *'  as  a  slave'*  within  the  meaning  of 
this  Section,  whatever  form  the  parties  to  the  transaction  may 
attempt  to  give  it. 

Any  person,  being  a  subject  of  the  Queen,  who  com^ 
mits  within  the  territories  of  any  Native  Prince  this  offence 
of  selling  or  disposing  of  any  fellow-subject  as  a  slave,  may  be 
punished  under  this  Clause. 

371.  Whoever    habitually   imports,   exports,   re- 

moves, buys,  sells,  traffics  ot 

Habitual  dealing  in  liases.        jij       i!l  i.iiv  "u 

^^  deals  m  slaves,  shall  be  punish* 

ed  with  transportation  for  life,  or  with  imprisonment 
of  either  description  for  a  term  not  exceeding  ten 
years,  and  shall  also  be  liable  to  fine. 

This  Section  is  for  the  punishment  of  the  slave-trader,  who  is 
habitually  engaged  in  the  traflSc  of  buying  and  selling  hu- 
man beings.  The  Section  extends  to  masters  of  vessels  and 
other  persons  who  habitually  aid  this  traffic  by  importing,  ex- 
porting, or  removing  the  subjects  of  it. 

See  the  note  to  the  preceding  Section. 

372.  Whoever  sells,  lets  to  hire,  or  otherwise  dis- 

poses of  any  minor  under  the 

Selline  or  letting  to  hire  a      -^  /•    •    x  •xu  •    x      x 

minor  for  ptirposea  of  pros*    age  01  Sixteen  years  witn  mtent 

titution,Ac.  ^^^^    g^^j^    ^^^^^  gj^^  ^^  ^^^ 

ployed  or  used  for  the  purpose  of  prostitution  or  for  any 
unlawful  and  inmioral  purpose,  or  knowing  it  to  be 
likely  that  such  minor  will  be  employed  or  used  for 
any  such  purpose,  shall  be  punished  with  imprisonment 
of  either  description  for  a  term  which  may  extend  to 
ten  years,  and  shall  also  be  liable  to  fine. 

2  T 


32|t  CHAPTER  XVI. 

This  offence  may  be  committed  not  only  by  parents,  guardians 
and  other  persons,  having  a  lawful  charge  or  custody  of  minors, 
but  also  by  persons  who  may  have  obtained  possession  of  them 
by  kidnapping  or  abduction.  The  consent  of  the  minor  is  im- 
material. 

The  Section  applies  to  the  sale  or  disposal  of  any  minor,  whe- 
ther male  or  female,  with  the  guilty  intention  or  knowledge 
which  is  expressed.  It  will  be  noticed  that  besides  the  par- 
pose  of  prostitution,  there  is  mentioned  ^^  any  unlawful  and  im- 
moral purpose.^'  This  expression  not  being  in  the  disjunctive, 
as  it  occurs  in  the  Exception  to  Section  361,  the  guilty  inten- 
tion which  it  is  necessary  to  establish  is  an  intention  to  use 
the  minor  for  a  purpose  as  well  unlawful  as  immoral. 

In  many  of  the  cases  contemplated  by  this  Section,  there  are 
written  documents  purporting  to  sell,  or  to  let  to  hire  for  a 
number  of  years  the  minor  or  the  minor's  services.  Not  un- 
commonly a  young  female  child  is  thus  let  to  a  procuress.  The 
written  contract  cannot  in  such  case  disguise  the  true  object  of 
the  parties. 

373.    Whoever  buys,  hires  or  otherwise  obtains  pos- 
Buyfaigorobtaininffpossea-    sessiou  of  auv  minor  uuder  the 

sion  of  a  minor  for  the  pur-  /»    •     i  -ii    •    j.       j^ 

pose  of  prostitution,  &o.  age  01  sixteeu  years  with  intent 

that  such  minor  shall  be  employed  or  used  for  the 
purpose  of  prostitution,  or  for  any  unlawful  and 
immoral  purpose,  or  knowing  it  to  be  likely  that  such 
minor  will  be  employed  or  used  for  any  such  purpose, 
shall  be  punished  with  imprisonment  of  either  descrip- 
tion for  a  term  which  may  extend  to  ten  years,  and 
shall  also  be  liable  to  fine. 

Professional  bawds  who  become  the  recipients  of  minors 
disposed  of  under  the  preceding  Section  or  who  in  any  other 
way  obtain  possession  of  the  persons  of  minors  with  the  inten- 
tion or  knowledge  mentioned  in  the  Section^  are  here  made 
punishable.  The  Section  extends  also  to  persons  who  get 
possession  of  minors  for  the  gratification  of  their  own  lusts  or 
passions. 


OF  EAPE.  ,323 


« 


374.    Whoever  unlawfully  compels  any  person  to 

uniawftd  oompnisary  la-     labour  agaiust  the  will  of  that 

^^^'  person,  shall  be  punished  with 

imprisonment  of  either  description  for  a  term  which 

may  extend  to  one  year,  or  with  fine,  or  with  both. 

Compulsory  labour  is  by  various  laws  now  in  force  permitted. 

Under  the  General  Exceptions  of  the  Code  nothing  is  an 
offence  which  is  done  by  a  person  who  is  justified  by  law. 
Where  there  is  no  law  to  justify  it^  the  compelling  of  ^  ^person 
by  force^  or  by  threats  which  reasonably  cause  him  to  appre- 
hend hurt  or  injury^  to  labour  against  his  free  will  is  an  offence. 


OF  BAPE. 


375.  A  man  is  said  to  commit  "rape,'*  who, 
Bape.  except  in  the  case  hereinafter 

excepted,  has  sexual  inter- 
course with  a  woman  under  circumstances  falling 
under  any  of  the  five  following  descriptions  : 

First.    Against  her  will. 

Secondly.    Without  her  consent. 

Thirdly.  With  her  consent,  when  her  consent  has 
been  obtained  by  putting  her  in  fear  of  death,  or  of 
hurt. 

Fourthly.  With  her  consent,  when  the  man  knows 
that  he  is  not  her  husband,  and  that  her  consent  is 
given  because  she  believes  that  he  is  another  man,  to 
whom  she  is  or  believes  herself  to  be  lawfully  married. 

Fifthly.  With  or  without  her  consent,  when  she 
is  under  ten  years  of  age. 

Expla/nation.  Penetration  is  sufficient  to  constitute 
the  sexual  intercourse  necessary  to  the  offence  of  rape. 

''A  woman''  that  is  a  female  human  being  of  any  age  (see 

Section  10).     In  this  definition  of  rape^  the  first  description 

('^  against  her  will'')  is^  where  the  woman  is  in  possession  of 

her  senses^  and  therefore  capable  of  consenting ;  the  second 

2  T  2 


824i  CHAPTER   XVI, 

C'  without  her  consent")  is,  where  she  is  insensible  whether  from 
drink  or  any  other  canse^  or  so  imbecile  that  she  is  incapable 
of  any  rational  consent ;  the  fifth  is,  where  the  intercourse  is 
with  a  child  so  young  that  consent  is  immaterial.  In  the 
third  and  fourth  descriptions  of  rape  there  is  consent,  but  it 
is  not  such  a  consent  as  excuses  the  offender,  because  in  the 
one  case  it  is  extorted  by  putting  the  woman  in  fear,  and  in 
the  other  it  is  obtained  by  deception  of  a  particular  kind. 
Mere  deception  by  false  promises  or  other  such  deceitful  means^ 
will  not  generally  affect  or  vitiate  a  consent. 

As  to  that  part  of  the  third  description  of  rape  which  re«> 
lates  to  consent  obtained  by  fear  of  hurt,  it  may  be  observed 
that  if  it  appeared  on  the  trial  of  a  man  on  a  charge  of  rape^ 
that  he  had  obtained  the  consent  of  the  woman  without  doing 
anything  that  could  put  her  into  fear  of  more  than  fk  very 
trivial  hurt,  there  would  be  just  ground  for  doubting  whether 
it  was  really  proved  that  she  had  consented  through  fear. 

Exception.  Sexual  intercourse  by  a  man  with  his 
own  lyife,  tl^e  wife  not  being  under  t^n  years  of  age, 
is  not  rape. 

The  early  age  at  which  children  are  married  and  are  in  the 
eye  of  the  law,  wives,  makes  it  necessary  that  they  should  be 
protected  till  they  are  of  aiji  age  to  reside  with  their  husbands. 
Cases  of  forcible  violation  and  great  injury  to  children,  where 
th^  offenders  are  jibe  husbands,  m^y  occur,  to  meet  which  the 
Exception  is  limited  i^nd  applies  only  where  thp  wife  is  not 
less  tha|i  ten  years  of  age.  Although  marriages  are  commonly 
contracted  among  Mahomedans  and  Hindoos  before  the  fig^ 
of  puberty,  yet  usually  the  bride  remains  in  the  house  of  her 
parents  till  she  is  of  a  §t  age  for  the  consammation  of  the 
marriage,  and  it  may  fairly  be  presumed  that  the  parents, 
her  natural  guardians  will,  in  general,  take  care  to  prevent 
abuse  in  this  respect.  There  may,  however,  be  instances  in 
which  the  check  of  the  law  may  be  necessary  tp  restrain  men 
from  taking  advantage  of  their  marital  right  prematurely. 


OF   RAPE.  325 

According  to  tlie  Explanation^  penetration  is  sufficient  to 
constitute  the  offence.  It  seems  that  any  penetration^  though 
short  of  rupturing  the  hymen,  is  sufficient. 

376.    Whoever  commits  rape  shall  be  punished 

with  transportation  for  life,  or 

Punishment  for  rape.  'j.!.    •  •  x       i?      -xv 

With  imprisonment  of  either 
description  for  a  term  which  may  extend  to  ten 
years,  and  shall  also  be  liable  to  fine. 

The  general  Exceptions  which  exempt  infants,  idiots,  &c., 
from  criminal  responsibility  are  of  course  applicable  to  this,  as 
to  all  other  penal  provisions  of  the  Code.  But  in  the  offence 
of  rape,  there  may  be,  by  reason  of  immaturity  of  the  body,  a 
want  of  physical  capacity  to  commit  the  offence  on  the  part  of  a 
child  between  the  ages  of  seven  and  twelve  years,  whose  under- 
standing is  nevertheless  sufficiently  matured  to  judge  of  the 
nature  of  his  conduct.  If  a  child  is  charged  with  the  offence 
it  must  be  proved  by  the  prosecution,  that  the  child  was  physi- 
cally capable  as  well  as  of  competent  understanding ;  unless  he  is 
charged  as  an  abettor,  in  which  case  no  question  concerning  his 
physical  capacity  can  arise.  It  must  appear  that  the  offence 
was  committed  against  the  will  of  the  woman,  or  as  the  case  may 
be,  without  her  free  consent,  according  to  the  several  descrip- 
tions of  the  offence  mentioned  in  the  definition.  It  is  no  excuse 
that  she  yielded  at  last  to  the  violence,  if  her  consent  was  forced 
from  her  by  fear  of  death  or  by  duress.  Nor  is  it  any  excuse, 
that  she  consented  after  the  fact,  or  that  she  was  a  common 
strumpet ;  for  she  is  still  under  the  protection  of  the  law,  and 
may  not  be  forced ;  or  that  she  was  first  taken  with  her  own 
ponsent,  if  she  was  afterwards  forced  against  her  will ;  or  that 
she  was  a  concubine  to  the  ravisher,  for  a  woman  may  forsake 
her  unlawful  course  of  life,  and  the  law  will  not  presume  her 
incapable  of  amendment.  All  these  circumstances,  however, 
are  material  for  consideration  in  favour  of  the  accused,  more 
especially  in  doubtful  cases,  and  where  the  woman's  testimony 
is  i^ot  corroborated  by  other  evidence. 


326  CHAPTER  XVI. 

The  party  ravished^  may  give  evidence  and  is  a  competent 
witness,  bat  the  credibility  of  her  testimony  mnst  be  considered 
by  the  Court.  Her  evidence  will  be  more  or  less  credible, 
according  to  the  circumstances  of  fact  that  concur  in  it. 
For  instance,  if  the  witness  be  of  good  fame,  if  she  forthwith 
discovered  the  ofifence,  and  made  pursuit  after  the  ofifender, 
and  showed  circumstances  and  signs  of  the  injury ;  if  the  place  in 
which  the  fact  was  done,  was  remote  from  people,  inhabitants, 
or  passengers ;  if  the  offender  fled;  these,  and  the  like  are 
concurring  evidences  to  give  greater  probability  to  her  testi- 
mony, when  proved  by  others  as  well  as  herself.  On  the 
other  hand,  if  she  concealed  the  injury  for  any  considerable 
time,  after  she  had  an  opportunity  to  complain ;  if  the  place 
where  the  fact  was  supposed  to  have  been  committed  was  near 
to  inhabitants,  or  the  common  recourse  or  passage  of  passengers, 
and  she  made  no  outcry  when  the  fact  was  supposed  to  be 
done,  where  it  was  probable  she  might  have  been  heard  by 
others,  such  circumstances  carry  a  strong  presumption  that  her 
testimony  is  false. 

377.    Whoever  voluntarily  has  carnal  intercourse 
„  ,  _  against  the  order  of  nature 

Unnatural  offences.  •  j.  r 

With  any  man,  woman,  or 
animal,  shall  be  punished  with  transportation  for 
life,  or  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  ten  years,  and  shall 
also  be  liable  to  fine. 

Explomation.  Penetration  is  sufficient  to  consti- 
tute the  carnal  intercourse  necessary  to  the  offence 
described  in  this  Section. 

It  is  not  necessary  to  prove  that  the  act  was  against  the  will 
or  without  the  consent  of  the  person  upon  whom  the  oflFence 
is  committed.  If  that  person  is  consenting,  both  are  guilty  of 
the  offence. 


OFFENCES  AGAINST  PROPERTY.        327 

Chapter  XVII. 
OF  OFFENCES  AGAINST  PROPERTY. 


The*  offences  defined  in  this  Chapter  are  made  punishable 
on  the  ground  that  they  are  violations  of  the  right  of  property. 
But  the  right  of  property  is  itself  the  creature  of  the  law. 
It  is  evident,  that  if  the  substantive  civil  law  touching  this 
right  be  imperfect  or  obscure,  the  penal  law,  which  is  auxiliary 
to  that  substantive  law,  and  of  which  the  object  is  to  add  a 
sanction  to  that  substantive  law,  must  partake  of  the  imperfec- 
tion or  obscurity.  If  it  be  matter  of  doubt  what  things  are  the 
subjects  of  a  certain  right,  in  whom  that  right  resides,  and 
to  what  that  right  extends,  it  must  also  be  matter  of  doubt 
whether  that  right  has,  or  has  not,  been  violated. 

For  example.  A,  without  Z's  permission,  shoots  snipes  on 
Z's  ground^  and  carries  them  away ;  here,  if  the  law  of  civil 
rights  grants  the  property  in  such  birds  to  any  person  who 
can  catch  them,  A  has  not,  by  killing  them  and  carrying  them 
away,  invaded  Z's  right  of  property.  If,  on  the  other  hand, 
the  law  of  civil  rights  declares  such  birds  the  property  of  the 
person  on  whose  lands  they  are,  A  has  invaded  Z^s  rights  of 
property.  If  it  be  matter  of  doubt  what  the  state  of  the  civil 
law  on  the  subject  actually  is,  it  must  also  be  matter  of  doubt 
whether  A  has  wronged  Z,  or  not. 

By  the  English  law,  pigeons,  while  they  frequent  a  dove- 
cote, are  the  property  of  the  owner  of  the  dove-cote.  By  the 
Boman  law  they  were  not  so.  By  the  French  law  they  are 
his  property  at  one  time  of  the  year,  and  not  his  property  at 
another.  Here  it  is  evident  that  the  taking  of  such  a  pigeon, 
which  would,  in  England,  be  a  violation  of  the  right  of  pro- 
perty, would  be  none  in  a  country  governed  by  the  Boman  law, 

•  This  is  a  part  of  the  note  appended  to  the  Chapter  of  Oflfencos  against  Pro- 
perty by  the  Indian  Law  Commissioners. 


328  CHAPTER  XVII^ 

and  that,  in  France  it  would  depend  on  the  time  of  the  year 
whether  it  were  so  or  not. 

A  lends  a  horse  to  B.  B  sells  the  horse  to  Z,  who  buys  it, 
believing  in  good  faith  that  B  has  a  right  to  sell  it.  A  sees 
the  horse  feeding.  He  mounts  it,  and  rides  away  with  it. 
Here,  if  the  law  of  civil  rights  provides  that  a  thing  sold  by 
one  who  has  no  right  to  sell  it,  shall  nevertheless  be  the  pro- 
perty of  a  bon&  fide  purchaser,  A  has  invaded  a  right  of  pro- 
perty. If,  on  the  other  hand,  A*s  right  is  not  aflTected  by  what 
has  passed  between  B  and  Z,  A  does  not  commit  an  infractioii 
of  Z^s  right  of  property.  If  it  be  doubtful  whether  the  right 
to  the  horse  be  in  A,  or  in  Z,  it  must  also  be  doubtful  whether 
A  has  or  has  not  committed  an  infraction  of  Z's  right. 

A  path  running  across  a  field  which  belongs  to  Z  has,  during 
three  years,  been  used  as  a  public  highway.  A,  in  spite  of 
tt  prohibition  from  Z,  uses  it  as  such.  Here  if  by  the  civil  law, 
an  usage  of  three  years  is  sufficient  to  create  a  right  of  way, 
A  has  committed  no  infraction  of  Z^s  right.  But  if  a  prescrip- 
tion of  more  than  three  years  or  an  express  grant  be  necessary, 
to  create  a  right  of  way,  A  has  committed  an  infraction  of  Z^s 
right  of  property. 

A  discovers  a  mine  on  land  occupied  by  him.  Here,  if  the 
civil  law  assigns  all  minerals  to  the  occupier  of  the  land,  A 
violates  no  right  of  property  by  appropriating  the  minerals.  But 
if  the  civil  law  assigns  all  minerals  to  the  Government,  A  violates 
the  right  of  property  by  such  appropriation. 

The  sea  recedes,  and  leaves  dry  land  in  the  immediate  neigh- 
bourhood of  Z's  property,  Z  cultivates  the  land.  A  turns 
cattle  on  the  land,  and  destroys  Z^s  crops.  Here,  if  the  civil 
law  assigns  alluvial  additions  to  the  occupier  of  the  nearest 
land,  A  is  a  wrong-doer.  If  it  declares  alluvial  additions 
common,  A  is  not  a  wrong-doer.  If  it  assigns  alluvial  additions 
to  the  Government,  both  Z  and  A  are  wrong-doers.  If  it  be 
uncertain  to  whom  the  law  assigns  alluvial  additions,  it  must 
be  also  uncertain  who  is  the  wrong-doer,  and  whether  there  be 
any  wrong-doer. 


OFFENCES  AGAINST  PJtOPEETY.  329 

The  substantive  civil  Uw,  in  the  instances  which  have  been 
given^  is  di£ferent  in  different  countries^  and  in  the  same  conntry 
at  different  times.  As  the  substantive  civil  law  varies^  the 
penal  law^  which  is  added  as  a  guard  to  the  substantive  civil 
}aw^  must  vary  also.  And  while  many  important  questions  of 
substantive  civil  right  are  undetermined,  the  Courts  must 
occasionally  feel  doubtful  whether  the  provisions  of  the  Penal 
Code  do  or  do  not  apply  to  a  particular  case. 

It  would,  evidently,  be  impossible  to  determine  in  the  Penal 
Code  all  the  momentous  questions  of  civil  right  which,  in  the 
unsettled  state  of  Indian  Jurisprudence,  will  admit  of  dispute. 
Many  things  are  taken  for  granted  in  the  Illustrations  which 
properly  belong  to  the  domain  of  the  civil  law,  because,  it  was 
probably  found  impossible  to  explain  the  operation  of  the  law 
without  doing  this.  But  questions  respecting  which,  even  in 
the  present  state  of  Indian  jurisprudence,  much  doubt  could 
exist,  are  avoided.  And  the  text  of  the  law  is  confined  as  close- 
ly as  possible  to  what  is  in  strictness  the  province  of  a  Penal 
Code.  Punishments  are  provided  for  the  infraction  of  rights, 
witjiout  determining  in  whom  those  rights  vest,  or  to  what 
those  rights  extend. 

All  the  violations  of  the  rights  of  property  which  are  made 
punishable  by  this  Chapter,  fall  under  one  or  more  of  the  fol- 
lowing heads  :— 

1.  Theft. 

2.  Extortion. 

3.  Bobbery  and  Dacoity. 

4.  Criminal  Misappropriation  of  Property. 

5.  Criminal  Breach  of  Trusts 

6.  Eeceiving  of  Stolen  Property. 

7.  Cheating. 

8.  Fraudulent  Deeds  and  Dispositions  of  Property 

9.  Mischief* 

10.  Criminal  Trespass* 

2  U 


330  CHAPTER  XVII. 

OE  THEFT. 

378,    Whoever  intending  to  take  dishonestly  any 
^^  moveable  property  out  of  the 

Theft.  .       ^1.  ^       •^  -xi. 

possession  of  any  person  wita- 
out  that  person's  consent,  moves  that  property  in 
order  to  such  taking,  is  said  to  commit  theft. 

The  following  words  in  the  definition  here  given  of  the 
ofifence  of  theft  will  be  found  explained  in  the  Chapter  of  Ge- 
neral Explanations — '' dishonestly^'  (Section  24),  ''moveable 
property'*  (Section 22), ''possession'^  (Section  27), and  *' con- 
sent" (Section  90). 

The  Explanations  and  numerous  Illustrations  which  are 
subjoined  to  the  definition  elacidate  its  terms ;  it  may  never- 
theless be  convenient  to  arrange  these  several  Explanations 
and  Illustrations  each  under  the  portion  of  the  definition  which 
it  is  meant  to  explain  and  to  illustrate. 

1.  "Whoever  intending  to  take  dishonestly  any  moveable 
property,"  Moveable  property  only,  and  no  other  description  of 
property,  can  be  the  subject  of  theft.  It  has  been  explained 
that  these  words  '^moveable  property"  are  intended  to  include 
corporeal  property  of  of  every  description,  except  land  and 
things  attached  to  land  (Section  22). 

It  will  be  necessary  on  a  charge  of  theft  that  the  Court  should 
be  satisfied  that  the  thing  stolen  is  not  only  moveable  but  also 
that  it  is  a  subject  o(  property :  and  this  the  Court  must  do,  as 
has  been  before  observed,  in  cases  where  any  doubt  arises  by  a 
reference  to  the  substantive  civil  law.  Cases  of  difficulty  will  sel- 
dom occur :  probably  when  they  do  happen,  they  will  generally 
be  of  the  description  mentioned  in  one  of  the  Illustrations  which 
has  been  already  given,  that  is  to  say  where  the  theft  is  of  animals, 
wild  by  nature,  but  which  have  been  in  some  degree  reclaimed 
or  brought  under  the  dominion  of  man.  Whether  the  thing 
stolen  is  of  this  or  of  any  other  description,  the  officers  who  ad- 
minister the  Code  in  the  absence  of  any  cleac  guidance  jfrom 
the  civil  law  upon  the  question  whether  the  thing  is  or  is  not  a 


THEFT.  831 

subject  of  property,  may  fairly  lean  to  that  condtraction  which 
will  give  the  protection  of  this  portion  of  the  Penal  Law  to 
any  things  however  intrinsically  valueless,  which  can  justly  be 
considered  to  be  in  the  possession  of  a  person  .and  to  have  in 
the  eye  of  that  person  some  value. 

Many  moveable  things  which  are  of  small  intrinsic  value  be- 
come very  valuable  when  they  show  a  title  to  property  or  con-» 
stitute  the  evidence  of  a  legal  right.  A  piece  of  paper  or  parch- 
ment may  thus  acquire  great  value.  By  what  is  written  upon 
it  the  material  may  become  a  title-deed  or  mortgage  deed,  or 
a  bond,  bill  of  exchange,  promissory  note,  &c.  It  seems  that 
any  of  these  documents,  as  well  deeds  relating  to  land,  as  do- 
cuments and  tokens  showing  a  right  to  moveable  property  or 
any  other  right,  and  written  contracts  or  agreements  may  be 
the  subject  of  thefb. 

By  the  English  Common  Law,  the  title-deeds  of  land  are 
not  the  subject  of  larceny*  nor  are  documents  (called  choses  in 
action)  such  as  bonds,  bills  of  exchange,  &c.  which  concern  a; 
matter  resting  in  contract  and  which  give  a  right  by  way  of 
contract  only. 

As  the  Penal  Code  when  it  punishes  theft  leaves  it  to  the  Civil 
law  to  determine  what  things  can  be  the  subjects  of  theft,  or 
in  other  words,  what  things  are  included  in  the  words  ''  move- 
able property'*  or  "  corporeal  property  of  every  description'* 
(see  Section  22),  it  may  bo,  that  in  cases  to  which  the  English 
Civil  law  of  property  applies,  the  theft  of  such  documents  as 
those  above  mentioned,  is  not  an  offence  punishable  under  this 
portion  of  the  Code. 

It  is  not  a  part  of  the  definition  itself  of  theft,  that  the  move- 
able property  should  be  of  some  assignable  value.  On  this  sub- 
ject, the  framers  of  the  Code  after  referring  to  the  95th  Section 
which  provides  that  nothing  shall  be  an  offence  by  reason  of 

•  The  state  of  the  law  in  this  respect  was  weU  remarked  upon  a  hundred  yearn 
,ago  by  counsel  in  argoment :  "  If  I  steal  a  skin  of  parchment  worth  a  shilling  it 
is  a  felony,  but  when  it  has  ten  thousand  pounds  added  to  its  value  by  what  is 
-written  npon  it^  it  is  no  offence  to  take  it  away." 

2  u  2 


332  CHAPTER  XVII. 

any  hann  wbich  it  may  cause  or  be  likely  to  caase^  if  the  whole 
of  that  harm  is  so  slight,  that  no  person  of  ordinary  sense  and 
temper  wonld  complain  of  such  harm,  say,«— '^  This  provision  will 
prevent  the  law  of  theft  from  being  abased  for  the  purpose  of 
punishing  those  venial  violations  of  the  right  of  property  which 
the  common  sense  of  mankind  readily  distingnishes  from 
crimes,  such  as  the  act  of  a  traveller  who  tears  a  twig  from  a 
hedge,  of  a  boy  who  takes  stones  from  another  person's  ground 
to  throw  at  birds,  of  a  servant  who  dips  his  pen  in  his  master's 
ink.  It  does  not  appear  to  us  that  any  further  rule  on  this  sub« 
ject  is  necessary/' 

Things  attached  to  the  earth  are  not  the  subject  of  theft, 
because  they  are  not  moveable :  but  they  may  become  so. 

^Explanation  1.  A  thing  so  long  as  it  is  attached 
to  the  earth,  not  being  moveable  property,  is  not  the 
subject  of  theft ;  but  it  becomes  capable  of  being  the 
subject  of  theft  as  soon  as  it  is  severed  from  the 
earth. 

Illustrations, 

(a)  A  cuts  down  a  tree  on  Z's  ground,  with  the  intention  of 
dishonestly  taking  the  tree  out  of  Z's  possession,  without  Z's  con- 
sent. Here,  as  soon  as  A  has  severed  the  tree,  in  order  to  such 
taking,  he  has  committed  theft. 

If  the  property  be  attached  to  the  earth,  the  mere  severing  it 
is  not  theft ;  to  constitute  theft  of  any  kind,  there  must  be,  as 
is  noticed  in  the  definition  and  hereafter,  a  moving  of  that  thing 
after  severance.  The  severance  as  such,  only  puts  the  thing 
into  that  condition  in  which  a  theft  can  be  committed  of  it. 
In  many  cases  things  attached  to  the  earth  may  be  severed 
from  it  without  being  moved,  and  then,  if  there  be  no  subse- 
quent moving,  there  is  no  theft.  If  indeed  the  same  act  which 
effects  the  severance,  also  effects  a  moving  of  the  thing,  as  in 
the  case  supposed  in  the  Illustration,  that  moving  is  sufficient ; 
but  in  many  cases  things  attached  to  the  earth  may  be  severed 
from  it  without  being  moved ;  and  then,  if  there  be  no  subse- 
quent  moving,  there  is  no  theft.  For  example,  a  trunk  fastened 


THBPT.  333 

by  a  rope  to  a  bolt  in  the  floor  or  wall  of  a  house  is  "  attached 
to  the  earth  :''  it  may^  by  catting  the  rope^  be  severed  without 
being  moved^  and  this^  though  it  be  done  with  the  intention 
of  taking  it  fraudulently  out  of  the  possession  of  a  person  with- 
out that  person's  consent^  does  not  amount  to  theft. 

2.  Moveable  property  must  be  in  the  possession  of  some  per* 
son,  to  be  the  subject  of  theft. 

In  theft;  as  it  is  here  defined,  the  object  of  the  offender  always 
is,  to  take  property  which  is  in  the  possession  of  a  person  out 
of  that  person's  possession.  The  Code  does  not  admit  a  single^ 
exception  to  this  rule.*  Accordingly  where  the  property  dis- 
honestly taken  is  in  no  person's  possession,  as  where  its  late 
possessor  is  dead,  or  where  it  is  lost  property  without  any  ap* 
parent  possessor,  it  is  not  the  subject  of  theft,  but  of  criminal 
misappropriation,  (see  Sections  403  and  404). 

(^)  A  finds  a  ring  lying  on  the  high-road,  not  in  the  possession  of 
any  person.  A  by  taking  it  commits  no  theft,  though  he  may  com- 
mit criminal  misappropriation  of  property. 

It  is  difficult  to  define  by  any  precise  legal  scale  what  shall 
constitute  a  distinct  possession.f    The  use  or  possession  of 

*  The  framers  of  the  Code  say,  "  In  the  great  majority  of  cases  our  classifica- 
tion will  coincide  with  the  popular  classification.  Bnt  there  are  a  few  aggravated 
cases  of  what  we  designate  as  misappropriation  and  breach  of  trust,  which  bear 
such  an  affinity  to  theft,  that  it  may  seem  idle  to  distinguish  them  from  thefts. 
And  it  certainly  would  be  idle  to  distingnish  sach  cases  from  theft,  if  the  distinc- 
tion were  made  with  a  view  to  those  cases  alone.  But,  as  we  have  a  line  of 
distinction  which  we  think  it  desirable  to  maintain  in  the  great  majority  of  cases, 
we  think  it  desirable  also  to  maintain  that  line  in  the  few  cases  in  which  it  may 
fleparate  things  which  are  of  a  very  similar  description." 

t  The  Indian  Law  Commissioners  observe :  "  We  believe  it  to  be  impossible  to 
mark  with  precision,  by  any  words,  the  circumstances  which  constitute  possession. 
It  is  easy  to  put  cases  about  which  no  doubt  whatever  exists,  and  about  which 
the  language  of  lawyers  and  of  the  multitude  would  be  the  same.  It  will  hard- 
ly be  doubted,  for  example,  that  a  gentleman's  watch  lying  on  a  table  in  his  room 
is  in  his  possession,  though  it  is  not  in  his  hand,  and  though  ho  may  not  know 
whether  it  is  on  his  writing  table,  or  on  his  dressing-table.  As  little  will  it  be 
doubted  that  a  watch  which  a  gentleman  lost  a  year  ago  on  a  journey  and  which  he 
has  never  heard  of  since,  is  not  in  his  possession.  It  will  not  be  doubted  that  when 
a  person  gives  a  dinner,  his  silver  forks,  while  in  the  hands  of  his  gnest,  are  stiU 
in  his  possession ;  and  it  will  be  as  little  doubted  that  his  silver  forks  are  not  in 
his  possession  when  he  has  deposited  them  with  a  pawnbroker  as  a  pledge. 
But  between  these  extreme  cases  lie  many  cases  in  which  it  is  difficult  to  pro- 
nounce, with  confidence,  either  that  property  is,  or  that  it  is  not,  in  a  person's 
posioMJop.    Thu  difflculfy,  soffioiently  great  in  itaelf,  would,  we  conceive,  be  in- 


834  CHAPTER  XVII. 

property  on  Ihe  premises  of  the  owner,  or  in  the  presence  and 
under  the  superintendence  of  the  owner  or  his  agent,  or  where 
he,  or  his  agent,  are  sufficiently  near  to  exercise  a  control  and 
superintendence  over  the  property,  may,  without  difficulty,  be 
considered  to  constitute  a  continuing  possession  by  the  proprie- 
tor. It  is  a  question  of  fact  rather  than  of  law  whether,  under 
the  circumstances  of  any  particular  case,  property  continues 
in  a  person^s  possession  notwithstanding  that  it  is  also  subject  to 
the  occupation  of  another :  but  if  the  occupant  has  a  bare  charge, 
and  nothing  beyond  this  is  entrusted  to  him,  his  mere  occupa- 
tion  does  not  disturb  or  affect  the  owner^s  possession.  A  master 
continues  in  possession  of  his  plate,  his  horses,  &c.  while  they 
are  under  the  care  of  his  servants. 

In  general  it  is  left  to  the  tribunals  without  any  direction  to 
determine  whether  particular  property  is  at  a  particular  time 
in  the  possession  of  a  particular  person  or  not.  But,  for  the 
purpose  of  preventing  any  difference  of  opinion  from  arising 
in  cases  likely  to  occur  very  often,  a  few  rules  are  laid  down 
which  may  be  supposed  to  be  in  accordance  with  the  general 
sense  of  mankind  as  to  what  shall  be  held  to  constitute  posses- 
sion. Property  in  the  possession  of  a  person^s  wife,  clerk  or  ser- 
vant on  account  of  that  person  is  deemed  to  be  in  that  person's 
possession  (see  Section  27).  Property  in  the  possession  of  a 
young  child  or  of  a  lunatic,  if  such  child  or  lunatic  be  in  the 
keeping  of  a  guardian,  may  be  deemed  to  be  in  the  possession  of 
the  guardian. 

Much  uncertainty  will  still  remain.  This  cannot  be  prevent- 
ed, but  the  provision  contained  in  the  72  nd  Section  will  prevent 
the  uncertainty  from  producing  any  practical  evil  or  incon- 
venience which  might  arise  from  doubts  occurring  under  this 
or  any  other  term  of  the  definition  of  theft,  as  to  the  exact  limits 
which  separate  this  offence  from  misappropriation,  breach  of 
trust,  &c. 

creased  by  laws  which  should  pronounce  thafc  in  a  sefc  of  cases  arbitrarily  selected 
from  the  mass  property  is  in  the  possession  of  some  party  in  whose  posseesion 
according  to  the  understanding  of  all  mankind  it  is  not." 


THEFT.  335 

The  following  illustrations  of  this  part  of  the  definition  are 
given— 

(d)  A,  heing  Z's  servant,  and  entrusted  hy  Z  with  the  care  of  Z's 
plate,  dishonestiy  runs  away  with  the  plate,  without  Z's  consent.  A 
has  committed  theft. 

•  {e)  Z,  going  on  a  journey,  entrusts  his  plate  to  A,  the  keeper  of 
a  warehouse,  till  Z  shall  return.  A  carries  the  plate  to  a  goldsmith 
and  sells  it.  Here,  the  plate  was  not  in  Z's  possession.  It  could 
toot  therefore  he  taken  out  of  Z's  possession,  and  A  has  not  commit- 
ted thefb,  though  he  may  have  committed  criminal  hreach  of  trust. 

(/)  A  finds  a  ring  helonging  to  Z  on  a  table  in  the  house  which  Z 
occupies.  Here,  the  ring  is  in  Z's  possession,  and  if  A  dishonestly 
removes  it,  A  commits  thefb. 

The  reason  why  the  first  of  these  cases  is  brought  under 
thefb  is,  that  the  plate  of  Z  taken  by  his  servant  A,  was  still  in 
Z's  possession,  though  it  was  also  actually  in  A's  possession 
or  charge.  In  Illustration  (fj  Z's  ring  is  in  his  possession^ 
because  it  is  on  a  table  in  the  house  which  he  occupies. 

The  other  Illustration  fej  points  out  the  diflference  between 
thefb  and  breach  of  trust  in  circumstances  nearly  similar  to 
those  mentioned  in  Illustration  {d).  The  plate  having  been 
entrusted  to  the  keeper  of  the  ware-house,  was  no  longer  in  Z's 
possession,  and  could  not  therefore  be  taken  out  of  Z's  posses- 
sion. 

A  bailment,  that  is,  a  delivery  of  moveable  property  to  a  per- 
son and  possession  of  it  by  that  person  for  a  special  purpose 
as  a  delivery  to  a  carrier  to  carry,  to  a  warehouse-keeper  to 
keep  &c.,  makes  that  person  (the  bailee)  the  possessor  of  the 
property :  while  the  bailment  lasts  he  is  the  rightful  possessor, 
and  a  dishonest  taking  from  him,  during  this  temporary  posses- 
sion, amounts  to  theft. 

But  the  possession  which  the  definition  requires  need  not, 
it  seems,  be  a  lawful  possession.  Suppose  the  property 
comes  into  the  hands  of  the  accused  person  rightfully  in 
the  first  instance  for  a  particular  purpose,  and  he  retains  it 
wrongfully  after  that  purpose  is  at  end ;  his  possession  is  a 
BufiScient  possession  within  the  meaning  of  this  definition  as 
against  one  who  takes  the  property  "  dishonestly,"  that  is^  with 


336  CHAPTER  XVII. 

the  intention  of  gaining  by  unlawful  means  that  to  which  he  is 
not  legally  entitled.  As  if  a  person,  to  whom  a  horse  is  lent  for 
a  certain  time  refuses,  at  the  expiration  of  that  time,  to  retarn 
the  horse  to  his  lawful  owner,  the  possession  continues  in  the 
borrower  until  it  is  in  some  way  resumed  by  the  original  owner. 
Even,  if  stolen  goods,  being  in  the  possession  of  the  thief,  are 
dishonestly  taken  from  him,  this  possession  seems  sufficient  to 
make  the  second  taker  a  thief  within  the  definition* 

But  there  must  be  a  possession  of  the  property  before  it 
can  be  the  subject  of  theft.  Suppose  a  piece  of  stamped  paper 
is  handed  to  a  person  to  write  a  receipt  upon  it  for  money 
about  to  be  paid  to  him,  and  after  he  has  written,  the  paper  is 
forthwith  seized  and  taken  away  by  the  person  who  brought  it ; 
here  it  was  never  intended  that  the  writer  should  retain  this 
paper,  and  the  paper  was  never  in  his  possession  so  as  to  be 
the  subject  of  theft  from  him.  In  the  case  above  supposed^ 
the  owner  of  the  horse  does  not  become  the  possessor  unti] 
he  in  some  way  resumes  his  possession.  But  if  the  horse  is 
in  the  hands  of  a  third  person  when  the  time  for  which  it  was 
lent  expires,  the  possession  of  such  person  may  become,  by 
arrangement,  the  owner's  possession. 

It  will  be  observed  that  the  definition  does  not  render  it 
necessary  to  ascribe  the  property  to  any  person  as  owner ;  the 
person  to  be  named  is  the  person  whose  actual  possession 
the  property  was  taken  or  attempted  to  be  taken ;  the  matter 
to  be  charged  is  that  the  offender,  intending  to  take  dishonestly 
a  particular  thing  which  is  property,  that  is  to  say,  a  thing  over 
which  some  person  has  a  right  of  property,  out  of  the  posses- 
sion of  A,  moved  that  thing  in  order  to  such  taking. 

3.  There  must  be,  in  order  to  a  taking,  a  moving  of  the 
thing. 

Explanation  3.  A  person  is  said  to  cause  a  thing 
to  move  by  removing  an  obgftacle  which  prevented  it 
from  moving,  or  by  separating  it  from  any  other 
thing  as  well  as  by  actually  moving  it. 


tUEFT.  &37 

Mvplanation  4.  A  person  who  by  any  means  caus- 
es an  animal  to  move,  is  said  to  move  that  animal, 
and  to  move  every  thing  which,  in  consequence  of 
the  motion  so  caused,  is  moved  by  that  animal. 

(5)  A  puts  a  bait  for  dogs  in  his  pocket,  and  thus  induces  Z's  dog  to 
follow  it.  Here,  if  A's  intention  be  dishonestly  to  take  the  dog  out 
of  Z's  possession  without  Z's  consent,  A  hab  committ'ed  theft  as 
soon  as  Z's  dog  has  begun  to  follow  A. 

(c)  A  meets  a  bullock  carrying  a  box  of  treasu^.  He  drivetf 
the  bullock  in  a  certain  direction,  in  order  that  he  may  dishonestly 
take  the  treasure.  As  soon  as  the  bidlock  begins  to  moVe,  A  has 
committed  thefb  of  the  treasure. 

The  3rd  Explanation  is  illastrated  by  the  following  case,  A 
pulls  a  bong  ont  of  a  hogshead  of  liquor  in  Z's  possession  with 
the  intention  of  dishonestly  taking  some  of  the  liquor  without 
Z's  consent.  As  soon  as  the  liquor  begins  to  flow^  A  has  oom- 
mitted  theft. 

When  the  thing  is  attached  to  the  earth,  there  can  of  course 
be  no  moving  of  it  within  the  meaning  of  this  part  of  the 
definition,  until  there  has  been  a  severance :  thus,  motion  com^ 
municated  to  a  tree  before  its  severance,  even  if  communicated 
in  order  and  with  a  view  to  its  severance,  is  not  a  moving  for 
this  purpose ;  but,  as  the  2nd  Explanation  shews,  when  the 
severance  is  complete,  the  same  act  which  effects  it,  may  alsa 
be  a  sufficient  moving  to  satisfy  the  definition. 

But  the  moving  which  the  definition  requires^  is  merely  a 
moving  in  order  to  a  dishonest  taking.  The  offence  may  be 
complete  notwithstanding  that  the  property  continues  in  the 
possession  of  the  person  holding  it.  A  man  may  commit  theft 
although  the  property  never  quits  the  possession  of  the  owner, 
if  there  is  a  moving  of  it  with  a  dishonest  intention.  As  if 
graiti  is  removed  from  the  owner's  store-house  without  his 
knowledge,  and  is  taken  to  his  shop  and  there  sold  to  him  as 
the  property  of  another  person ;  or,  as  if  a  workman  who  is 
paid  for  his  labour  according  to  the  number  of  skins  which 
be  prepares,  removes  some  prepared  skins  from  the  heap  for 
which  he  has  received  payment  Mid  obtains  a  second  time 
payment  for  the  same  skins. 
2  X 


338  CHAPTER  XVII. 

But  the  moving  must  take  place  at  a  time  when  the  dis' 
honest  intention  to  take  exists.     (See  Illustration  h.) 

4.  The  intention  to  take  dishonestly.  This  is  the  most 
important  part  of  the  definition.  It  is  the  intention  of  the 
taker  which  must  determine  whether  the  taking  or  moving 
of  a  thing  is  theft.  The  intention  to  take  dishonestly  exists 
when  the  taker  intends  to  cause  wrongful  gain  to  one  person 
or  wrongful  loss  to  another  person.     (See  Sections  33  and  34.) 

The  most  simple  form  of  theft  consists  in  a  man's  fraudulently- 
taking  and  having  as  his  own  that  which  does  not  belong  to 
him,  his  intention  being  to  assume  the  entire  dominion  over 
the  thing  taken  and  wholly  to  despoil  and  deprive  the  former 
owner  of  his  property.  But  the  intention  to  deprive  the  owner 
or  possessor  for  ever  of  his  property,  is  not  according  to  the 
Code  made  necessary  to  theft.*  The  intention  expressed  in  the 
definition  is  merely  to  take  ''  dishonestly,^'  and  according  to  the 
definition  of  that  word,  any  taking  with  a  purpose  of  causing 
wrongful  loss  by  depriving  a  person  of  a  benefit  which  he  would 
have  enjoyed  from  the  thing  if  it  had  not  been  taken  from  him, 
is  a  dishonest  taking  :  thus— 

(T)  A  takes  an  article  belonging  to  Z  out  of  Z's  possession  without 
Z's  consent,  with  the  intention  of  keeping  it  until  he  obtains  money 
from  Z  as  a  reward  for  its  restoration.  Here,  A  takes  dishonestly ; 
A  has  therefore  committed  thefb. 

And  in  the  case  supposed  in  Illustration  {d),  if  the  servant 
entrusted  with  the  care  of  the  plate,  instead  of  running  away 
with  it,  had  pawned  it,  he  would  have  been  guilty  of  theft. 


*  The  oontrary  prinoiple,  that  there  is  no  theft  except  where  it  is  intended  to 
deprive  the  owner  forever  of  his  property  would,  ithas  been  remarked,  "if  declared 
and  generally  known  to  be  law,  and  fairly  and  ftilly  carried  ont  into  practice  in 
the  administration  of  the  law,  be  likely  to  prove  productive  of  great  inconvenience 
and  embarrassment.  Is  it  desirable  that  he  who  dishonestly  takes  away  another^s 
cloak  should  be  acquitted  of  theft,  on  his  proving  that  it  was  his  intention  to 
return  it  as  soon  as  it  became  thoroughly  threadbare ;  or  that  a  man  might  steal 
a  valuable  young  horse,  without  any  danger  of  being  punished  as  a  thief,  so  long 
as  he  intended,  and  took  care  to  provide  proof  of  his  intention  to  restore  the 
animal  to  its  owner  when  it  attained  the  age  of  twelve  yemrs,  or  sooner  if  it  should 
happen  to  become  irrecoverably  lame  P" 


THEPT.  339 

It  will  be  seen  from  the  following  Illnstrations  that  the 
owner  of  property  may,  by  taking  it  dishonestly,  commit  theft 
of  his  own  property. 

(;*)  If  A  owes  money  to  Z  for  repairiog  the  watch,  and  if  Z  re- 
tains the  watch  lawfully  as  a  security  for  the  debt,  and  A  takes  the 
watch  out  of  Z's  possession  with  the  intention  of  depriving  Z  of 
the  property  as  a  security  for  his  debt,  he  commits  thefb,  inasmuch  as 
he  takes  it  dishonestly. 

{k)  Again  if  A,  having  pawned  his  watch  to  Z,  takes  it  out  of 
Z's  possession  without  Z*s  consent,  not  having  paid  what  he  had  bor- 
rowed on  the  watch,  he  commits  theft,  though  the  watch  is  his  own 
property,  inasmuch  as  he  takes  it  dishonestly. 

Where  there  is  no  intention  to  take  dishonestly,  there  is  no 
theft. 

(p)  A,  in  good  faith,  believing  property  belonging  to  Z  to  be  A's 
own  property,  takes  that  property  out  of  B's  possession.  Here,  as 
A  does  not  take  dishonestly,  he  does  not  commit  thefb. 

The  case  supposed  in  this  Illustration  is  one  in  which  the 
taker  honestly  believes  the  property  taken  to  be  his  own.  It 
will  be  the  same  if  the  property  is  taken  by  mistake,  as  if  the 
sheep  of  A  stray  from  his  flock  into  the  flock  of  B  and  the 
latter  by  mistake  treats  them  as  his  own.  But  the  taking  of 
property  by  mistake  is  an  excuse,  which  must  not  be  admitted 
too  readily.  If  the  taker  appears  desirous  of  concealing  the  thing 
taken,  or  of  preventing  the  inspection  of  it  by  the  owner,  or  by 
any  other  person  who  might  make  the  discovery,  or  if,  being 
asked,  he  denies  having  the  property,  although  the  knowledge 
of  his  having  it  be  proved,  these  are  circumstances  tending  to 
show  a  dishonest  taking. 

(i)  A  delivers  his  watch  to  Z,  a  jeweller,  to  be  regulated.  Z  car- 
ries it  to  his  shop.  A,  not  owing  to  the  jeweller  any  debt  for  which 
the  jeweller  might  lawfully  detain  the  watch  as  a  security,  enters  the 
shop  openly,  takes  his  watch  by  force  out  of  Z's  hand  and  carries  it 
away.  Here  A,  though  he  may  have  committed  criminal  trespass  and 
assault,  has  not  committed  thefb,  inasmuch  as  what  he  did  was  not 
done  dishonestly. 

In  this  case  the  taking  by  A  of  his  own  property,  in  respect 
of  which  Z  had  no  claim,  is  not  a  dishonest  taking,  for  his  gain 
is  not  wrongful  gain  (see  Section  23).     It  may  be  that  he  gaina 
2x2 


840  CHAPTER  XVII, 

by  unUwfoI  means,  beoanae  he  takes  bis  vatob  by  force.  But 
he  does  not  gain  "  property  to  which  he  is  not  legally  entitled/' 
for  the  watch  is  his  own,  and  he  is  entitled  to  possess  it^  If  hQ 
enforces  his  just  rights  by  improper  means,  be  may  be  guilty 
of  an  offence,  but  is  not  guilty  of  the  offenoe  of  theft* 

In  the  Illustrations  (;J  and  CkJ  he  takes  dishonestly  because 
he  causes  wrongful  loss  (see  Section  23)  to  the  watchmaker 
and  pawn-broker,  who  had  an  interest  in  the  watch  to  the  ex« 
tent  of  their  claims. 

The  intention  to  take  dishonestly,  must  exist  at  the  time  of 
the  n^oving  of  the  property  ii>  order  to  such  taking, 

(h)  A  sees  a  ring  belo^giDg  to  Z  lying  on  a  table  in  Z*s  house. 
Not  venturing  to  misappropriate  the  ring  immediately  foy  fear 
of  search  and  detection,  A  hides  the  ring  in  a  place  where  it  is  highly 
improbable  that  it  will  ever  be  found  by  Z,  with  the  intention  of 
taking  the  ring  from  the  hiding-place,  and  selling  it  when  the  loss 
U  forgotten.  Here  A,  at  the  time  of  first  moving  the  ring^  coi^mits 
theft. 

If  Z  deliver  the  ring  to  4-  &  jeweller  to  repair  ai^d  A  takes  it 
away  |br  this  purpose,  a  subsequent  misappropriation  of  thQ 
ring  by  him  will  not  make  this  a  theft. 

5.  There  mpst  be  an  intention  to  take  the  property  without 
the  consent  of  the  person  in  possession  of  the  property.  A  oon* 
^Qnt  is  not  si^oh  a  consent  as  is  intended  by  this  or  by  any 
other  Seotion  of  the  Code  if  it  is  given  under  fear  or  misopn* 
Caption  &e^  (see  Section  00). 

Explanation  5.  TUe  consent  mQiitioiied  w  tl|6 
definition  may  be  express  or  implied,  aijd  may  be 
given  either  by  the  person  in  possession,  or  by  any 
person  having  for  that  purpose  authority  either  ex» 
press  or  implied. 

(m)  A,  being  on  friendly  termp  with  Z,  goes  into  Z's  library  in 
Z's  absence,  and  takes  away  a  book,  without  Z's  express  consent,  for 
the  purpose  merely  of  reading  it,  and  with  the  intention  of  retufniug 
it.  Here,  it  is  probable  that  A  may  have  conceived  that  he  had  Z*8 
implied  consent  to  use  Z's  book.  If  this  was  4's  impression,  A  has 
pot  committed  theft. 


THEFT.  341 

(ft)  A  asks  charity  from  Z's  wife.  She  gives  A  money,  food,  and 
clothes,  which  A  knows  to  helong  to  Z  her  husband.  Here,  it  is 
probable  that  A  may  conceive  that  Z's  wife  is  authorised  to  give  away 
alms.    .If  this  was  A's  impression  A  has  not  committed  thefl. 

(p)  A  is  the  paramour  of  Z's  wife.  She  gives  A  valuable  property 
which  A  knows  to  belong  to  her  husband  Z,  and  to  be  such  property 
as  she  has  not  authority  from  Z  to  give.  If  A  takes  the  property 
dishonestly  he  commits  thefb. 

If  a  person  takes  dishonestly  the  husband^s  goods  and  the 
wife  knows  of  the  taking  and  consents  to  it^  sach  a  consent 
will  be  of  no  avail.  If  the  taker  is  a  person  with  whom  the 
wife  has  committed  or  intends  to  commit  adultery,  her  consent 
to  the  taking  is  in  this  case  of  no  avail. 

In  cases  to  which  the  English  law  is  applicable,  if  a  wife  takes 
dishonestly  moveable  property  of  which  her  husband  is  the 
joint  or  sole  owner,  the  taking  would  probably  not  be  deemed 
a  theft  within  this  Code,  because  the  husband  and  wife  are  in 
that  law  but  one  person,  and  the  wife  has  a  kind  of  interest  in 
the  goods, 

379.    Whoever  commits  theft  shall  be   punished 
Piini8iixiientforth«n.  With  imprisonment  of  either 

description  for  a  term  which  may  extend  to  three 

years,  or  with  fine,  or  with  both. 

In  the  punishment  awarded  to  theft  not  only  is  no  limit  set 
to  the  shortness  of  the  period  for  which  the  offender  may  be 
pentenced  to  imprisonment,  but  at  the  discretion  of  the  jadgQ 
imprisonment  may  be  entirely  dispensed  with,  and  a  fine  im- 
posed  as  the  whole  punishment.  In  awarding  the  punishment 
for  theft  the  judge  may  also,  by  adding  fine  to  imprisonment  de- 
prive  the  offender  of  his  wrongful  gain,  and  under  the  provisions 
of  the  Criminal  Procedure  Code,  (Section  44)  may  apply  the  finei 
to  compensate  the  loss  sustained  by  the  sufferer.  If  it  is  ^n- 
certain  whether  the  offence  is  theft,  or  misappropriation,  or 
breach  of  trust,  the  provision  contained  in  the  72nd  Section 
will  obviate  all  inconvenience  which  might  ariso  from  such 
doubts. 


342  CHAPTER  XVII. 

380.  "Whoever  commits  theft  in  a  building,  tent. 
Theft  in  a  building,  tent  op     or  vcssel,  which  building,  tent, 

^^"^^  or  vessel  is  used  as  a  human 

dwelling,  or  for  the  custody  of  property,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  seven  years,  and  shall  also 
be  liable  to  fine. 

381.  Whoever  being  a  clerk  or  servant,  or  being 

employed  in  the  capacity  of  a 

Theft  by  derk  or  servant         i      i  j.  •/  xt_    ru. 

of  property  in  possession  of      Clcrk  Or  SCFVaut,  COmmitS  thClt 

™**^''  in  respect  of  any  property  in 

the  possession  of  his  master  or  employer,  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  seven  years,  and  shall 
also  be  liable  to  fine. 

Property  is  in  the  possession  of  the  master  or  employer,  not 
only  when  it  is  in  his  actual  mannal  possession^  but  also  when  it 
is  in  the  possession  of  a  clerk  or  servant  on  his  accoant.  And  a 
person  employed  temporarily,  or  on  a  particular  occasion  in  the 
capacity  of  a  clerk  or  servant,  will,  it  seems,  come  within  the 
terms  of  this  Section.  If  the  master  bnys  goods  and  sends  his 
servant  to  receive  them,  and  the  servant  dishonestly  carries 
them  away,  be  may,  it  seems,  be  punished  under  this  Section. 
The  master  has  the  possession  of  the  goods,  when  they  are  receiv- 
ed by  the  servant  for  the  master's  use ;  they  are  delivered  to  the 
servant  on  account  of  the  master  and  being  thus  in  his  posses- 
sion, they  are,  within  the  meaning  of  this  Code,  in  the  master's 
possession. 

A  clerk  or  servant  who  has  not  merely  a  bare  possession  or 
charge,  but  who  is  intrusted  in  such  capacity  with  property  or 
with  any  dominion  over  property  is  punishable  by  the  408th 
Section,  if  he  commits  a  criminal  breach  of  trust. 

382.  Whoever  commits  theft,  having  made  pre- 

paration for  causing  death,  or 
JSJ'^for^SSiinr^efti^'^o?  hurt,  or  restraint,  or  fear  of 
SSSiftSSmeft!*^"^"^'"    death,  or   of   hurt,   or  of  re- 

straint,  to  any  person,  in  order 


EXTORTION.  343 

to  the  committing  of  such  theft,  or  in  order  to  the 
effecting  of  his  escape  after  the  committing  of  such 
theft,  or  in  order  to  the  retaining  of  property  taken 
by  such  theft,  shall  be  punished  with  rigorous  impri- 
sonment for  a  term  which  may  extend  to  ten  years, 
and  shall  also  be  liable  to  fine. 

Illustrations, 

(a)  A  commits  theft  on  property  in  Z's  possession ;  and,  while 
committing  this  theft,  he  has  a  loaded  pistol  under  his  garment, 
having  provided  this  pistol  for  the  purpose  of  hurting  Z  in  case  Z 
should  resist.     A  has  committed  the  offence  defined  in  this  Section. 

(b)  A  picks  Z's  pocket,  having  posted  several  of  his  companions 
near  him,  in  order  that  they  may  restrain  Z,  if  Z  should  perceive 
what  is  passing  and  should  resist,  or  should  attempt  to  apprehend  A. 
A  has  committed  the  offence  defined  in  this  Section. 

The  Illustrations  will  shew  the  operation  of  this  Section.  The 
Section  applies  only  to  cases  in  which  the  offence  of  thefl  has 
actually  been  committed.  A  mere  attempt  to  commit  thefb 
after  such  preparation  for  causing  death  or  hurt  &o.  is  not 
punishable  under  this  Section. 


OF  EXTORTION. 

Extortion,  like  theft,  belongs  to  that  class  of  offences,  into 
the  definition  of  which  the  intention  of  causing  wrongful  gain 
enters.  The  dishonest  intention  to  obtain  property  is  common 
to  both  these  offences ;  but  in  theft,  the  object  of  the  offender 
is  to  take  property  which  is  in  the  possession  of  a  person 
out  of  that  person's  possession,  and  it  is  part  of  the  definition 
that  the  offender's  intention  should  be  to  take  '*  without  that 
person's  consent/' 

The  offence  of  extortion  is  distinguished  from  theft  by  this 
obvious  circumstance  that  it  is  committed  by  the  wrongful 
obtaining  of  a  consent,  and  not  without  consent.  It  is  dis- 
tinguishable from  robbery  by  this  feature  that  the  property  is 
obtained  by  means  of  such  fear  of  injury  as  does  not  amount 
to  the  fear  of  instant  death  or  personal  hurt,  which  is  part  of 
the  offence  of  robbery. 


311  CHAPTER  XVtl. 

383.    Wlioever  intentionally  puts  any  person  in 
Extortion.  fear  of  any  injury  to  that  per- 

son or  to  any  other,  and  thereby  dishonestly  induces 
the  person  so  put  in  fear  to  deliver  to  any  person  any 
property  or  valuable  security  or  any  thing  signed, 
or  sealed  which  may  be  converted  into  a  valuable 
security,  commits  "  extortion." 

Illustrations. 

(a)  A  threatens  to  publish  a  defamatory  libel  concerning  Z,  unless 
Z  gives  him  money.  He  thus  induces  Z  to  give  him  money*  A  has 
committed  extortion. 

(b)  A  threatens  Z  that  he  will  keep  Z*s  child  in  wrongful  confine- 
ment, unless  Z  will  sign  and  deliver  to  A  a  promissory  note  binding 
Z  to  pay  certain  monies  to  A.  Z  signs  and  delivers  the  note.  A  has 
committed  extortion. 

(c)  A  theatens  to  send  club-men  to  plough  up  Z's  field  unless  Z 
will  sigfl  and  deliver  to  B  a  bond  binding  Z  under  a  penalty  to  deliver 
certain  produce  to  B,  and  thereby  induces  Z  to  sign  and  deliver  the 
bond.     A  has  committed  extortion. 

(d)  A  by  putting  Z  in  fear  of  grievous  hurt,  dishonestly  induces 
Z  to  sign  or  affix  his  seal  to  a  blank  paper  and  deliver  it  to  A*  Z 
signs  and  delivers  the  paper  to  A.  Here,  as  the  paper  so  signed  may- 
be converted  into  a  valuable  security,  A  has  committed  extortion. 

According  to  this  definition^  the  ofience  consists  in  intention- 
ally intimidating  a  person  by  threats  or  otherwise,  and  thereby 
Causing  a  dishonest  transfer  or  delivery  of  property  firom  sUch 
persoii  to  any  other  person. 

1,  ''Puts  any  person  in  fear  of  any  injury/'  The  wide 
interpretation  of  the  Word  "  injury^'  must  be  borne  in  tnind  i 
(see  Section  44).  Whether  a  person  has  in  fact  been  put  in 
fear  of  injury  is  a  matter  which  the  Court  must  decide.  The 
age,  sex  and  situation  of  the  person  threatened  may  properly 
be  taken  into  consideration.  It  seems  necessary  to  constitute 
the  offence  th&t  the  person  threatened  should  be  actually  put 
in  fear ;  upon  the  whole  of  the  facts,  however,  if  there  is  reason 
enough  to  say  that  similar  circumstances  would  ordinarily 
excite  fear  in  persons  of  the  same  age,  &c.,  as  the  person 
threatened,  the  Court  will  not  too  easily  listen  to  suggestions 
or  evidence  adduced  to  shew  that  the  passion  of  (eea  was  not 
in  truth  aroused.     Nor  on  the  other  hand,  considering  that  the 


EXTORTION.  845 

proof  that  he  was  put  in  fear  will  often  mainly  foe  the  evidence 
of  the  person  threatened,  and  that  exaggerated  if  not  false 
versions  of  the  ocenrrence  are  not  improbable,  should  the 
oharge  of  extortion  be  considered  as  established  without  a 
cautions  investigation. 

The  injury  which  excites  fear  may  be  threatened  to  the 
person  put  in  fear  or  to  any  other  person.  Elsewhere  the 
expression  usually  is  in  similar  cases  '^  any  person  in  whom 
he  is  interested.'^  The  Illustration  (bj  puts  a  threat  to  Z  con- 
ceming  Z's  child.  But  from  the  generality  of  the  expression, 
it  seems  that  no  tie  of  relationship  is  requisite.  If  in  fact  the 
fear  of  injury  is  excited,  it  matters  not  that  another  person,  be 
he  who  he  may,  is  the  supposed  object  of  such  injury.  And 
it  is  not  apparently  essential  that  there  should  be  a  well-founded 
grround  for  apprehending  that  injury  will  be  sustained  by  any 
person.  For  if  a  person  is  put  in  fear  and  if  this  is  done  not 
by  accident  or  without  design  but  intentionally,  this  part  of 
the  definition  is  fulfilled. 

''  Thereby  induces  the  person  so  put  in  fear  to  deliver,''  Ac. 
The  essential  ingredient  in  extortion  is,  that  the  offender  dis« 
honestly  induces  the  person  put  in  fear  to  deliver  property. 
The  Court  must  see  sufficient  reason  to  believe  that  in  conse-i 
quence  of  the  putting  in  fear,  and  in  accordance  with  the  in- 
tention  of  the  offender,  a  dishonest  transfer  of  property  has  been 
brought  about ;  that  the  delivery  has  been  caused  by  the  threats, 
&c.,  of  a  person  who  bad  the  intention  of  causing  wrongful 
loss  to  the  person  put  in  fear,  or  wrongful  gain  to  himself  or 
to  some  other  person. 

The  delivery  of  the  property  may  be  direct  from  the  person 
threatened  to  the  offender  or  to  another  person  by  his  direc- 
tion, or  it  may  be  by  placing  the  property  in  some  place  of 
deposit,  or  by  otherwise  putting  it  at  the  immediate  disposal 
of  the  offender. 

The  subjects  of  extortion  are,  it  seems,  the  same  as  the  sub- 
jects of  theft,  although  the  word  /' moveable"  is  not  used  in 
this  definition. 

2   Y 


346  CHAPTER  xvn. 

''  Valuable  security/'  These  words  have  been  explained  (see 
Section  30).  It  is  clear  that  any  document  which  is  denoted 
by  these  words  may  be  the  subject  of  the  offence  of  extortion, 
even  if  it  should  be  deemed  not  to  be  moveable  property,  and 
therefore  not  to  be  included  in  the  definition  of  theft. 

"  Any  thing  signed/'  Ac.  According  to  English  Law  these 
words  would  be  understood  thus.  A  signs  his  name  to  a  blank 
paper  or  to  a  promissory  note  in  which  dates,  sums,  Ac,  are 
not  filled  up ;  or  A  having  caused  a  deed  or  a  bond  to  be  pre- 
pared, has  signed  and  sealed  it,  but  has  not  yet  delivered  it  as 
his  deed,  this  act  of  delivery  being  that  which  gives  full 
legal  effect  and  operation  to  the  instrument.  In  each  of  these 
cases,  the  blank  note  and  the  incomplete  deed  is  a  subject  of 
extortion. 

384.    Whoever  commits  extortion,  shall  he  punish* 

ed  with  imprisonment  of  either 
Punirtunentforextortion.      description  for  a  term  which 

may  extend  to  three  years,  or  with  fine,  or  with  both. 

Notwithstanding  the  circumstance  that  there  is  something 
approaching  to  bodily  injury  (putting  in  fear  of  injury)  in  ex- 
tortion, the  punishment  which  may  be  awarded  is  not  greater 
than  for  theft.  The  theft  of  a  thing,  that  is,  the  taking  of  it 
dishonestly  without  consent,  will  not  usually  be  an  offence  of 
such  baseness  as  the  extortion  of  it,  that  is,  the  causing  its  deli- 
very by  a  person  who  consents  to  deliver  it,  because  he  is  put 
in  fear  and  dares  not  to  withhold  his  consent. 

Extortion  would  appear,  except  from  the  wide  range  given 
to  this  offence  by  the  expression  "  fear  of  injury'^  to  be  a  more 
grave  offence  and  to  deserve  in  its  graver  form  a  heavier 
punishment. 

The  definition  of  extortion  requires  that  the  person  should 
in  fact  be  put  in  fear  of  injury  and  that  the  object  (delivery  of 
property,  &c.,)  should  be  accomplished.  It  must  therefore 
be  proved  that  the  person  was  put  in  fear  of  an  injury,  whether 
im  injury  of  body,  mind,  reputation  or  property,  to  himself  or 


EXTORTION.  347 

another ;— that  the  act  by  which  this  fear  was  excited  was  in- 
tentionally done  by  the  accused  person ; — that  the  property  was 
delivered  to  the  accused,  or  according  to  his  directions  to  any 
other  person  or  put  in  any  place  by  his  orders ; — and  that  this 
was  done  ''  dishonestly,'^  as  to  which  a  strong  inference  will  arise 
on  proof  of  the  former  matters  that  a  dishonest  intention 
existed. 

If  it  is  doubtful  whether  a  paHj^cular  act  of  extortion  amounts 
to  robbery  or  not,  the  offender  may  nevertheless  be  convicted 
upon  a  charge  of  Extortion.  For  this  and  other  Sections  under 
the  present  head  are  not  to  be  read,  as  if  the  words  ^^  unless  the 
offence  shall  amount  to  robbery,''  or  any  like  words  were  added. 
The  definition  of  the  lower  offence,  extortion^  includes  all  cases 
which  are  within  the  definition  of  the  cognate  higher  offence^ 
extortion  amounting  to  robbery.  The  offence  does  not  cease 
to  be  extortion  or  to  be  punishable  as  such  under  this  division, 
because  it  is  shown  that  the  extortion  is  of  the  kind  which  may 
amount  to  robbery.  If  the  case  is  doubtful,  the  proper  course 
is  to  convict  the  offender  of  the  crime  which,  without  doubt, 
he  has  committed,  namely  extortion,  and  to  punish  him  for  it. 
In  such  a  case  there  is  no  necessity  for  resorting  to  the  provi- 
sion in  Section  72. 

385.     Whoever,  in  order  to  the  committing  of  ex- 
tortion,   puts   any   person  in 

Pnttinff  parson  in  fear  of      «  i  j  j.      x  x      .i. 

injuryinorder  tooommit  ex-      tear,    Or    attempts    tO    pUt   SJiy 

^^°^  person  in  fear  of  any  injury^ 

shall  be  punished  with  imprisonment  of  either  des- 
cription for  a  term  which  may  extend  to  two  yearis,  or 
with  fine,  or  with  both. 

A  distinction  between  the  inchoate  and  the  consummated 
offence,  is  recognized.  The  attempt  to  commit  extortion  has 
proceeded  so  far  towards  completion  that  a  person  has  been 
put  in  fear  of  injury,  or  that  there  has  been  an  attempt  to 
excite  such  fear ;  but  the  offence  is  incomplete  because  there  has 
been  no  delivery  of  property,  &c.  The  Court  must  be  satisfied 
2x2 


348  CHAl^ER  XVII. 

ifaat  tbe  patting  in  fear  is  with  the  intention  of  extorting  a 
delivery  of  property. 

386.  Whoever  commits  extortion  by  putting  any 

person  in  fear  of  death  or  of 
intoiff  of^eaA  OT^eJoSS  grievous  hurt  to  that  person  or 
^^^'  to  any  other,  shall  be  punish- 

ed with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  ten  years,  and  shall  also  be 
Uable  to  fine. 

Some  of  those  things  which  come  within  the  definition  of 
"  extortion/'  are  distinguished  by  a  description  from  the  re- 
mainder,  and  a  more  severe  punishment  is  provided  for  them. 
These  are  extortions  by  putting  in  fear  of  death  or  of  grievous 
hurt.  Such  extortion  is  not  robbery,  unless  the  offender  is  at 
the  time  of  committing  it  in  the  presence  of  the  person  put  in 
fear,  and  the  fear  is  of  instant  death,  &c. 

387.  Whoever    in    order    to    the  committing  of 

^    extortion,  puts  or  attempts  to 

Putting  person  in  fear  of  .  "■  •      n  /*  ji      xi. 

death  or  of  grievoua  hurt  in    put  anv  porson  in  fear  of  death 

order  to  oommit  extortion.  *_       i»-  i__j.x       xi-j. 

or  of  grievous  hurt  to  that 
person  or  to  any  other,  shall  be  punished  with  im- 
prisonment of  either  description  for  a  term  which  may 
extend  to  seven  years,  and  shall  also  be  liable  to  fine* 

See  the  note  to  Section  385. 

The  attempt  to  commit  the  aggravated  extortion  made  pu- 
nishable by  the  preceding  Section,  is  here  punished. 

388.  Whoever  commits  extortion  by  putting  any 

person  in  fear  of  an  accusa- 
cS^^ofe^lfi^oe%^:S:  tion  agaiust  that  person  or 
tion.&S?''^*"'*''*'"'"^'"**'  anv  other,  of  having  commit- 
ted, or  attempted  to  commit 
any  oflfence  punishable  with  death,  or  with  transpor- 
tation for  life,  or  with  imprisonment  for  a  term 
which  may  extend  to  ten  years,  or  of  having  at- 
tempted to  induce  any  other  person  to  commit  such 
offence,  shall  be  punished  with  imprisonment  of  either 


EOBBEEY.  349 

description  for  a  term  which  may  extend  to  ten 
years,  and  shall  also  be  liable  to  fine ;  and  if  the 
oflfence  be  one  punishable  under  Section  377  of  this 
Code,  may  be  punished  with  transportation  for  life. 

Here  as  in  the  386th  Section,  a  heavier  punishment  is  pro- 
yided  for  extortion,  when  it  is  committed  with  certain  circum- 
stances of  aggravation.  "  In  fear  of  an  accusation/'  This  ex- 
pression probably  applies  to  threats  of  charging  a  person 
falsely  before  a  judicial  tribunal  or  some  public  authority  with 
the  commission  of  an  offence. 

389,    Whoever  in  order  to  the    committing    of 

Putting  pe«on  in  fear  of    extortion,  puts  or  attempts  to 
aoousation  of  offence  in  order    put  any  pcrson  m  fear  of  an 

to  commit  extortion.  ^  ..     ^  •      a  ,-,     , 

accusation,  against  that  person 
or  any  other,  of  having  committed  or  attempted  to 
commit  an  oflfence  punishable  with  death  or  with 
transportation  for  life,  or  with  imprisonment  for  a 
term  which  may  extend  to  ten  years,  shall  be  pun- 
ished with  imprisonment  of  either  description  for  a 
t^rm  which  may  extend  to  ten  years,  and  shall  also 
be  liable  to  fine ;  and  if  the  oflfence  be  one  punishable 
xmder  Section  377  of  this  Code,  may  be  punished 
with  transportation  for  life. 

See  notes  to  Sections  385 — 388. 


OF   EOBBEEY  AND  DACOITT. 

The  oflTence  of  robbery  is  distinct  from  theft  or  extortion,  but 
in  every  robbery,  either  the  oflfence  of  theft  or  the  oflfence  of 
extortion,  will  be  committed.  It  must  not  be  supposed  that 
what  is  robbery  cannot  be^  or  ceases  to  be  extortion  or  theft. 
The  line  of  separation  is  drawn  not  between  the  oflTence  of  rob- 
bery and  the  oflfence  of  extortion^  but  between  the  extortion 
which  is  robbery  and  the  extortion  which  is  not  robbery.  There 
is  in  like  manner  a  Une  of  separation^  not  between  theft  and 


350  CHAPTER  XVII. 

robbery,  but  between  the  theft  which  is  robbery  and  the  theffc 
which  is  not  robbery. 

The  Indian  Law  Commissioners  observe  that ''  In  practice  it 
will  perpetually  be  matter  of  doubt  whether  a  particular  act  of 
robbery  was  a  theft  or  an  extortion.  A  large  proportion  of 
robberies  will  be  half  theft,  and  half  extortion.  A  seizes  7a f 
threatens  to  murder  him,  unless  he  delivers  all  his  property, 
and  begins  to  pull  off  Z's  ornaments.  Z  in  terror  begs  that  A 
will  take  all  he  has,  and  spare  his  life,  assists  in  taking  off  his 
ornaments,  and  delivers  them  to  A.  Here,  such  ornaments  as 
A  took  without  Z's  consent  are  taken  by  theft.  Those  which  Z 
delivered  up  from  fear  of  death  are  acquired  by  extortion.  It 
is  by  no  means  improbable  that  Z^s  right  arm  bracelet  may 
have  been  obtained  by  theft,  and  left  arm  bracelet  by  extortion ; 
that  the  Rupees  in  Z's  girdle  may  have  been  obtained  by  theft^ 
and  those  in  his  turban  by  extortion.  Probably  in  nine-tentha 
of  the  robberies  which  are  committed  something  like  this  ac- 
tually takes  place,  and  it  is  probable  that  a  few  minutes  later 
neither  the  robber  nor  the  person  robbed  would  be  able  to  re- 
collect in  what  proportions  theft  and  extortion  were  mixed  in 
the  crime,  nor  is  it  at  all  necessary  for  the  ends  of  Justice  that 
this  should  be  ascertained.  For  though  in  general,  the  consent 
of  a  sufferer  is  a  circumstance  which  very  materially  modifies 
the  character  of  the  offence,  and  which  ought  therefore  to  be 
made  known  to  the  Courts,  yet  the  consent  which  a  person  gives 
to  the  taking  of  his  property  by  a  ruffian  who  holds  a  pistol  to 
his  breast  is  a  circumstance  altogether  immaterial.'^ 

390.    In  all  robbery  there  is  either  theft  or  ex- 
Bobbery,  tortion. 
Theft  is  "  robbery/'  if  in  order  to  the  committing  of 
«^    -«.  ^,  ■«  ^^  the  theft,   or  in   committing 

When  Theft  is  Bobbery.  ,,       ii     i-i  •  •  ° 

the  theft,  or  m  carrying  away 
or  attempting  to  carry  away  property  obtained  by  the 
theft,  the  offender,  for  that  end,  voluntarily  causes  or 
attempts  to  cause  to  any  person  death,  or  hurt,  or 


ROBBERY.  351 

wrongful  restraint,  or  fear  of  instant  death,  or  of  in- 
stant hurt,  or  of  instant  wrongful  restraint. 

llliisfrations, 

(a)  A  holds  Z  down,  and  fraudulently  takes  Z's  money  and  jewels 
Irom  Z's  clothes,  without  Z's  consent.  Here  A  has  committed  theft, 
and,  in  order  to  the  committing  of  that  thefb,  has  voluntarily  ^caused 
wrongful  restraint  to  Z.  A  has  therefore  committed  robbery. 

Theft  aggravated  by  actual  or  attempted  violence^  as  by  cans- 
ing  fear  of  violence,  is  robbery.  Whether  this  aggravation  pre- 
cedes the  commission  of  the  thefb  or  accompanies  it,  or  follows 
it,  if  the  end  in  view  be  thefb,  the  offender  has  committed  the 
kind  of  thefl  which  is  robbery.  But  the  definition  requires 
violence  (actual  or  attempted),  or  a  causing  of  fear  of  present 
instant  death  or  violence. 

And  the  violence  or  fear,  whether  it  is  offered  or  caused  to 
him  whose  property  is  stolen  or  to  another,  must  be  immediately 
connected  with  the  theft.  If  A  is  ciwrying  away  stolen  pro- 
perty from  the  place  of  theft  and  meets  upon  the  road  and 
hurts  a  Police  Officer  or  private  person  who  suspects  and  desires 
to  detain  him,  this  does  not  make  his  offence  of  thefb  a  robbery ; 
but  he  commits  a  distinct  offence. 

Extortion  is  "  rohhery,"   if  the  offender,   at  the 
When  Bxtortion  is  Bob-    time  of  Committing  the  extor- 
^®'y-  tion,  is  in  the  presence  of  the 

person  put  in  fear,  and  commits  the  extortion  by 
putting  that  person  in  fear  of  instant  death,  of  instant 
hurt,  or  of  instant  wrongful  restraint  to  that  person, 
or  to  some  other  person,  and,  by  so  putting  in  fear, 
induces  the  person  so  put  in  fear  then  and  there  to 
deliver  up  the  thing  extorted. 

Ea^lomation.  The  offender  is  said  to  be  present 
if  he  is  sufficiently  near  to  put  the  other  person  in 
fear  of  instant  death,  of  instant  hurt,  or  of  instant 
wrongful  restraint. 

(b)  A  meets  Z  on  the  high  road,  shews  a  pistol,  and  demands  Z's 
purse.  Z  iu  consequence  surrenders  his  purse.  Here,  A  has  ex- 
t;orted  the  purse  from  Z  by  putting  him  in  fear  of  instant  hurt ;  and 
being  at  the  time  of  committing  the  extortion  in  his  presence,  A 
has  therefore  comxnitted  robbery. 


362  CHAPTER  XVII. 

(c)  A  meets  Z  and  Z's  child,  on  the  high  road.  A  takes  the 
child,  and  threatens  to  fling  it  down  a  preaipice,  unless  Z  delivers  his 
purse.  Z  in  consequence  delivers  his  purse.  Here  A  has  extorted  the 
purse  from  Z,  hy  causing  Z  to  be  in  fear  of  instant  hurt  to  the  child 
who  is  there  present.     A  has  therefore  committed  robberj  on  Z. 

(d)  A  obtains  property  from  Z  by  saying — "  Your  child  is  in  the 
hands  of  my  gang,  and  will  be  put  to  death  unless  you  send  us  ten 
thousand  Rupees."  This  is  extortion,  and  punishable  as  such  ;  but 
it  is  not  robbery,  unless  Z  is  put  in  fear  of  the  instant  death  of  his 
ohild. 

"  Is  in  the  presence  of  Extortion  aggravated  by  causing 
fear  of  instant  death,  &c.  is  robbery.  The  definition  requires^ 
and  the  expression  ''  instant  death/'  &c.  implies,  the  presence 
of  the  person  who  is  put  in  fear.  The  Explanation  and  the 
Illastratioils  fc)  and  (d)  mark  the  distinction  thus  made  between 
the  extortion  which  is  robbery  and  the  extortion  which  is  not 
robbery. 

391.  When  five  or  more  persons  conjointly  com- 

mit or  attempt  to  commit  a 
Daooity.  robberjT,  or  where  the  whole 

number  of  persons  conjointly  committing  or  attempt- 
ing to  commit  a  robbery,  and  persons  present  and 
aiding  such  commission  or  attempt,  amount  to  five  or 
more,  every  person  so  committing,  attempting,  or 
aiding,  is  said  to  commit  "  Dacoity." 

This  word  "  Dacoity,''  (gang  robbery)  is  used  in  the  Bengal 
and  Madras  Regulations^  and  is  retained  in  the  Code  for  the 
purpose  of  denoting  not  only  actual  gang  robbery^  but  the  at- 
tempting to  rob  when  such  an  attempting  is  made  or  aided  by 
a  gang. 

392.  Whoever  commits  robbery  shall  be  punished 
^  ,  ^      ^ ,      ^.  with    rigorous   imprisonment 

Punishment  for  robbery.  ^  ,o  r 

for  a  term  which  may  extend 
to  ten  years,  and  shall  also  be  liable  to  fine ;  and  if 
the  robbery  be  committed  on  the  highway  between 
sunset  and  sunrise,  the  imprisonment  may  be  extend- 
ed to  fourteen  years. 


ROBBERY.  363 

The  definition  of  the  offence  in  Section  390  shews  that  rob- 
bery is  "  theft/'  aggravated  by  actual  violence,  by  causing  fear 
of  instant  death,  &c. ;  or  "  extortion,"  aggravated  by  putting 
in  fear  of  instant  death,  &o.  The  evidence  on  a  prosecution 
for  robbery  will  be  :  (1)  proof  of  the  same  kind  as  would  support 
a  charge  of  theft  or  of  extortion,  (2)  proof  of  the  contemporane- 
ous violence  or  putting  in  fear.  Prom  that  part  of  the  defini- 
tion which  explains  when  theft  is  robbery,  it  appears  that  the 
proof  should  be  of  some  violence  connected  with  the  act  of 
thieving.  Suppose  a  quarrel  and  subsequent  violent  scuffle  to 
take  place  between  two  persons,  in  the  course  of  which  money 
or  other  property  belonging  to  one  of  them  falls  on  the  ground 
and  is  picked  up  and  carried  away  by  the  other :  if  the  Court 
thinks  the  violence,  however  great,  was  not  used  in  order  to  the 
committing  or  in  committing  the  theft,  or  in  carrying  off  the 
property,  there  should,  it  seems,  be  no  conviction  for  robbery. 
And  it  would  be  the  same  if  the  violence  was  purely  accidental, 
for  the  definition  requires  it  to  be  "  voluntary  "  The  violence 
Bhonld  be  proved.  If  there  is  a  struggle  between  the  offender 
and  the  owner  for  the  possession  of  the  property,  or  if  it  is 
snatched  away  so  as  to  cause  '*  hurt,''  such  thefts  would  be 
robberies. 

In  the  absence  of  violence  it  should  be  proved  that  the  ex- 
tortion was  by  putting  some  person  in  fear  of  instant  death, 
&c.     Threats  of  future  injury  would  not  be  sufficient. 

Tlie  putting  in  fear  must,  in  every  robbery,  be  shewn  to  be  a 
present  fear  of  instant  death,  hurt,  &c. ;  and  it  must  be  proved 
(in  extortion  amounting  to  robbery)  that  the  offender  is  in  the 
presence  of  the  person  put  in  fear  either  actually  or  in  the 
sense  explained. 

If  the  accused  is  charged  with  the  aggravated  offence  of 
robbery  on  the  highway  between  sunset  and  sunrise,  it  will  be 
necessary  to  give  evidence  of  the  time  and  place  of  the  robbery. 
Probably  the  word  "  highway"  here  used  should  receive  the 
widest  signification  that  it  will  bear,  so  as  to  include  any  road, 

2  z 


354  CHAPTER  XVII. 

street,  path,  &c.  in,  public  use.  Fine  may  be  rewarded  with  the 
increased  term  of  imprisonment. 

393.  Whoever  attempts  to  commit  robbery  shall 

be  punished  with  rigorous  im- 
Attempttooommitrobbery.    prisonment  for  a  term  which 

may  extend  to  seven  years,  and  shall  also  be  liable  to 
fine. 

4-  present  intention  to  rob  combined  with  an  act  in  execu- 
tion of  such  intention  which  falls  short  of  the  oflfence  intend- 
ed, is  an  attempt  to  rob.  The  attempt  should  be  proved  by 
some  act  which  is  a  comnienceiiient  of  the  execution  of  the 
purpose,  or  which  in  the  judgment  of  the  Court  sufficiently 
manifests  the  intention  of  the  accused.  If  the  proof  should 
shew  not  merely  an  attempt  to  rob,  but  that  the  offence  of  rob- 
bery has  been  committed,  Qr  if  it  is  uncertain  whether  the  of- 
fence is  robbery  or  only  an  atteinpt  to  rob,  the  accused  may 
nevertheless  be  convicted  under  this  Sectior^. 

394.  If  any  person,  in  committing  or  in  attempt- 
Voluntarily  causing  hurt  in    ^^S  ^^  commit  robbcry,  volun^ 

committing  robbery.  Warily  causcs  hurt,  such  person 

and  any  other  person  jointly  concerned  in  committing 
or  attempting  to  commit  such  robbery,  shall  be 
punished  with  transportation  for  life,  or  with  rigorous 
imprisonment  for  a  term  which  may  extend  to  ten 
years,  and  shall  be  liable  to  fine. 

The  offence  of  robbery  or  of  attempting  robbery  is  aggravat- 
ed by  hurt. 

The  guilty  act  of  one  is  imputed  to  all  who  are  joined  witU 
him,  provided  the  act  is  done  in  committing  the  offence  of  rob- 
bery. Violence  or  hurt  entirely  unconnected  with  that  offence 
or  used  to  gratify  a  personal  spite  or  passion  is  not  con- 
templated ;  as  if  one  of  the  robbers  should  commit  murder  or 
rape,  while  the  others  are  occupied  with  plundering  or  searching 
for  property. 


DACOITT.  355 

To  snpport  this  charge^  there  should  be  proof  of  the  robbery 
or  attempt^  and  of  the  hart :  that  the  hart  was  caused  yolun- 
tarily^  that  is  not  accidentally  but  intentionally  or  knowingly^ 
may  fairly  be  presumed  in  the  absence  of  any  circomstancea 
to  shew  that  it  was  accidental* 

"  Such  person  and  any  other  person  jointly  concerned,^'  &c. 
See  Sections  34,  37,  114  and  the  notes.  These  words  would 
appear  to  include  all  persons  concerned  whether  as  sictors  or 
'  as  abettors,  unless  the  word  *'  jointly''  confines  the  provisions 
to  those  cases  in  which  the  offenders  are  all  joint  doers  within 
Section  34. 

395.  Whoever  commits  dacoity  shall  be  punished 
T>«  :  u      *  *    -.     -^         with    transportation  for   life, 

Puniflhment  for  daooity.  -.i      •      ^  •  •  1 

or  With  rigorous  imprisonment 
for  a  term  which  may  extend  to  ten  years,  and  shall 
also  be  liable  to  fine. 

It  will  be  borne  in  mind  that  this  offence  as  defined  does 
not  always  involve  robbery.  The  proof  should  be  of  a  robbery 
or  attempt  to  rob  by  five  or  more  persons  who  are  either  joint 
actors,  or  some  of  whom  actually  commit  the  robbery,  &c.  while 
the  others  are  abettors,  being  present  but  not  actually  partici- 
pating in  the  commission  of  robbery  or  in  the  attempt  to  rob. 

396.  If  any  one  of  five  or  more  persons,  who  are 

coniointlv  committing  dacoity, 

Daooity  with  murder.  -i     *  j        •  'j 

1/aooii.y  wi„ii  muruer.  Qommits  miirdcr  in  so  commit- 

ting dacoity,  every  one  of  those  persons  shall  be 
punished  with  death,  or  transportation  for  life,  or 
rigorous  imprisonment  for  a  term  which  may  extend 
to  ten  years,  and  shall  also  be  liable  to  fine. 

All  present  and  aiding  in  the  dacoity  whether  they  actually 
participate  in  the  commission  of  it,  or  are  only  members  of  the 
gang  ready  to  act  if  required,  must  share  in  the  criminal 
liability  for  the  murder  committed  by  one  or  more.  Any 
person  who  can  be  proved  to  have  taken  such  part  in  the  mur- 
der as  would  make  him  an  abettor  of  the  crime  may  be  prose- 
2  z  2 


356  CHAPTER   XVII. 

cated  and  punished  under  the  provisions  concerning  abetment. 
It  matters  not  whether  he  was  engaged  in  dacoity  or  not. 
But  this  Section  and  Section  394  reach  cases  in  which  such 
abetmemt  cannot  be  proved,  or  even  may  be  disproved.  But 
the  murder  must  be  in  committing  the  dacoity.  If  one  of  the 
gang  should  make  use  of  this  opportunity  to  gratify  an  old 
grudge,  and  murder  some  person  at  the  place  where  the  dacoity 
is  committed,  the  guilt  of  his  offence  would  not  be  imputed  to 
all  the  others. 

397.  If,  at  the  time  of  committing  robbery  or 

dacoity,  the  oflfender  uses  any 

Bobbery  or  dacoity  with  at-       j       ji  • 

tempt  to  cause  death  or  griev-  deadly  wcapon  or  causes  griev- 
*^  ous   hurt  to   any   person,  or 

attempts  to  cause  death  or  grievous  hurt  to  any  per- 
son, the  imprisonment  with  which  such  offender  shall 
be  punished  shall  not  be  less  than  seven  years. 

A  minimum  punishment  not  less  than  seven  years,  must  be 
imposed  on  the  offender  or  those  of  the  offenders  who  use  a 
deadly  weapon,  whether  they  actually  inflict  a  wound  or  not ; 
cr  who  in  any  way  or  by  any  means  cause  ''  grievous  hurt," 
at  the  time  of  committing  a  robbery.  The  Section  does  not 
apply  to  attempts  to  rob  which  are  accompanied  by  those  aggra- 
vating circumstances. 

398.  If,  at  the  time  of  attempting  to  commit  rob- 

bery or  dacoity,  the  offender 

Attempt  to  commit  robbery       •       "  j  .>V'  j       j^ 

or  dacoity  when  armed  with      18      armed     With      any      Cieaclly 

deadiyweapon.  wcapcn,      the    imprisonment 

with  which  such  offender  shall  be  punished  shall  not 
be  less  than  seven  years. 

To  such  of  the  offenders  as  are  armed  with  deadly  weapons^ 
though  they  do  not  use  them  in  the  attempt  to  rob  or  commit 
dacoity,  an  imprisonment  of  not  less  than  seven  years  must  be 
awarded. 

399.  Whoever  makes  any  preparation  for  commit- 
MakiM  preparation  to  oom-     ting  dacoity,  shall  be  puuishcd 

taitdaooTty.  ,      ^jtjj    rfgorous    imprisonment 


DACOITT.  367 

for  a  term  which  may  extend  to  ten  years,  and  shall 
also  be  liable  to  fine. 

''  Makes  any  preparation/'  The  words  point  to  acts  done 
prior  to  a  commencement  of  theexecation  of  the  gailty  purpose, 
and  it  may  be  before  any  particular  dacoity  is  planned.  It  will 
be  enough  if  there  is  a  general  design  to  commit  dacoity  or  to 
engage  in  an  expedition  for  this  purpose  though  the  plans  of 
the  dacoits  are  not  yet  matured.  The  "  making  preparation'' 
should  be  shewn  to  the  satisfaction  of  the  Court  by  some  acts 
—such  as  the  collection  of  men,  arms,  provisions,  &c., — ^which, 
coupled  with  other  circumstances,  plainly  manifest  the  intention 
to  commit  dacoity. 

400.  Whoever,  at  any  time  after  the  passing  of  this 
Punishment  for  belonging  Act,  shall  belong  to  a  gang  of 
to  a  gang  of  dacoits.  persons  Bssociated  for  the  pur- 

pose  of  habitually  committing  dacoity,  shall  be 
puT)ished  Mdth  transportation  for  life,  or  with  rigorous 
imprisonment  for  a  term  which  may  extend  to  ten 
years,  and  shall  also  be  liable  to  fine. 

A  stringent  law  (Act  XXIV.  of  1843)  to  this  effect  was  in 
force  until  recently.  The  persou  aimed  at  are  those  who  are 
habitually  associated  with  gangs  of  professional  dacoits,  syste- 
matically employed  in  carrying  on  their  lawless  pursuits  in 
different  parts  of  the  country  (see  the  Preamble  to  that  Act), 
accompanying  such  gangs  in  their  expeditions  and  actually 
participating  in  these  operations. 

A  person  who  ordinarily  lives  by  honest  labor  and  who  on 
some  occasion  has  been  tempted  to  join  himself  to  a  gang  and 
to  take  a  subordinate  part  in  a  robbery  committed  by  such 
gang,  cannot  properly  be  designated  as  belonging  to  a  gang  of 
habitual  dacoits.  The  evidence  on  a  charge  under  this  Section 
must  shew  that  the  accused  after  the  first  day  of  January,  1862, 
belonged  to  the  gang. 

4f01.    Whoever,  at  anytime  after  the  passing  of 


Fonishment  for  beloni 
a  wandering  gang  of  tl 


Qgingto    this  Act,  shall  belong  to  any 
hievea.     wandering  or  other  gang  of 


368  CHAPTER  XVII. 

persons  associated  for  the  purpose  of  habitually  com- 
mitting theft  or  robbery,  and  not  being  a  gang  of 
thugs  or  dacoits,  shall  be  punished  with  rigorous 
imprisonment  for  a  term  which  may  extend  to  seven 
years,  and  shall  also  be  liable  to  fine. 

See  the  note  to  the  last  preceding  Section.  The  various 
tribes  of  professional  thieves  who,  under  various  names,  abound 
in  many  parts  of  India,  seem  to  be  especially  contemplated. 

402.    Whoever,  at  any  time  after  the  passing  of  this 

Assembling  for  purpose  of      -^Ct>     ^^^^   ^^    ^^^    of    flvO    Or 

committing  dacoity.  ^^j.^  persons  assomhlcd  for  the 

purpose  of  committing  dacoity,  shall  he  punished  with 
rigorous  imprisonment  for  a  term  which  may  extend 
to  seven  years,  and  shall  also  he  liahle  to  fine. 

This  unlawful  assembly  of  persons  meeting  for  a  common 
purpose  to  commit  dacoity^  are  subject  to  the  severe  punish^ 
ment  here  provided^  notwithstanding  that  the  persons  assem- 
bled may  not  have  proceeded  one  step  towards  the  accomplish- 
ment of  their  object. 


OF  CKIMINAL  MISAPPROPRIATION   OF  PROPERTY. 

Jn  theft  the  object  of  the  offender  always  is  to  take  proper- 
ty which  is  in  the  possession  of  a  peirson  out  of  that  person's 
possession ;  and  the  offence  is  complete  as  soon  as  the  offender 
has  moved  the  property  in  order  to  a  dishonest  taking  of  it. 
In  the  offence  of  criminal  misappropriation,  there  is  not  neces- 
sarily an  invasion  of  the  possession  of  another  person  by  an 
attempt  to  take  from  him  that  which  he  possesses.  The  offen- 
der is  already  in  possession  of  the  property ;  and  is  either  law- 
fully in  possession  of  it,  because  either  he  has  found  it  or  is  a 
joint  owner  of  it,  or  his  possession,  if  not  strictly  lawful,  is  not 
punishable  as  an  offence,  because  he  has  acquired  it  under  some 
mistaken  notion  of  right  in  himself  or  of  consent  given  by  ano- 
ther (see  the  Illustrations  to  Section  403).     The  offence  con- 


CKIMINAL  MISAPPROPRIATION   OF   PROPERTY.   359 

sists  not  in  wrongfully  obtaining  possession,  but  in  tbe  misap- 
propriation, either  permanently  or  for  a  time,  of  property  which 
is  already  without  wrong  in  the  possession  of  the  offender. 

The  dishonest  intention  to  appropriate  the  property  of  ano- 
ther is  common  to  theft  and  to  criminal  misappropriation.  But 
this  intention  which  in  theft  is  sufficiently  manifested  by  a  mov- 
ing of  the  property  must  in  the  other  offence  be  carried  into 
action  by  an  actual  misappropriation  or  conyersion. 

403.    Whoever     dishonestly    misappropriates    or 
Dishonest  misftpppoppifttion    coiiverts  to  his  own  usc  any 
ofppoperty.  moveable    property,   shall  be 

punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  two  years,  or  with  tine, 
or  with  both. 

lUustroHons. 

(a)  A  takes  property  belonging  to  Z  out  of  Z's  possession,  in 
good  faith  believing,  at  the  time  when  he  takes  it,  that  the  property 
belongs  to  himself.  A  is  not  guilty  of  theft ;  but  if  A,  after  discover- 
ing his  mistake,  dishonestly  appropriates  the  property  to  his  own  use^ 
he  is  guilty  of  an  offence  under  this  Section. 

(b)  A,  being  on  friendly  terms  with  Z,  goes  into  Z's  library  in  Z's 
absence,  and  takes  away  a  book  without  Z's  express  consent.  Here, 
if  A  was  under  the  impression  that  he  had  Z's  implied  consent  to 
take  the  book  for  the  purpose  of  reading  it,  A  has  not  committed 
thefb.  But  if  A  afterwards  sells  the  book  for  his  own  benefit,  he  is 
guilty  of  an  offence  under  this  Section. 

(c)  A  and  B  being  joint  owners  of  a  horse,  A  takes  the  horse  out 
of  B's  possession,  intending  to  use  it.  Here,  as  A  has  a  right  to  use 
the  horse,  he  does  not  dishonestly  misappropriate  it.  But  if  A  sells 
the  horse,  and  appropriates  the  whole  proceeds  to  his  own  use,  he  is 
guilty  of  an  offence  under  this  Section. 

If  the  sheep  of  A  stray  from  his  flock  to  the  flock  of  B,  and 
B  takes  them  by  mistake  and  drives  or  leads  them  along  with 
his  own  flock^  he  has  committed  no  offence.  But  if  after  disco- 
vering his  mistake^  he  dishonestly  appropriates  them  to  his  own 
nsOj  as  by  offering  to  sell  them  as  his  own  property^  by  shearing 
them  and  using  the  wool  as  his  own^  &c.  he  is  guilty  of  an 
offence  under  this  Section. 

If  A's  house  is  on  fire  and  B  assists  in  saving  some  of  A^s 
goods  and  without  A's  diiection  takes  them  home  to  his  own 


360  CHAPTER   XVII. 

house,  but  next  morning  denies  that  he  has  them  in  his  possfis* 
sion,  here  it  may  well  be  that  B  took  the  goods  with  an  honest 
intention  meaning  only  to  assist  in  saving  his  neighbour's  pro- 
perty from  the  fire,  but  his  subsequent  denial  of  the  possession 
of  them  is  proof  sufficient  of  a  dishonest  oonversion  of  the  pro- 
perty to  his  own  use. 

Explcmation  1.  A  dishonest  misappropriation  for  a 
time  only  is  a  misappropriation  within  the  meaning 
of  this  Section, 

Illustration, 

A  finds  a  Government  Promissory  note  belonging  to  Z,  bearing  a 
blank  endorsement.  A,  knowing  that  the  note  belongs  to  Z,  pledges 
it  with  a  banker  as  a  security  for  a  loan,  intending  at  a  future  time  to 
restore  it  to  Z.     A  has  committed  an  offence  under  this  Section. 

Or  A  finds  a  watch  which  he  knows  to  belong  to  B.  He 
dishonestly  misappropriates  it^  if  he  keeps  it^  intending  not  to 
deprive  B  wholly  of  the  watch,  but  to  hold  it  until  he  obtains 
money  from  B  as  a  reward  for  its  restoration. 

In  criminal  misappropriation  a  dishonest  conversion  of  pro- 
perty to  a  man's  use  for  a  time  only  is  sufficient,  as  in  theft  an 
intention  to  take  dishonestly  for  a  time  and  afterwards  to  re- 
store the  property  is  sufficient. 

The  second  Explanation  shows  under  what  circumstances  a 
finder  of  lost  property  becomes  an  offender  by  dealing  with  it 
as  if  it  were  his  own. 

The  owner  of  goods  is  not  obliged  to  keep  a  constant  manual 
possession  of  them,  to  be  protected  in  his  rights.  A  man's  goods 
are  in  his  possession  not  only  while  they  are  in  his  house  or  on 
his  premises,  but  also  when  they  are  in  a  place  where  he  may 
usually  send  them,  as  horses  or  cattle  feeding  on  common  land ; 
or  in  a  place  where  they  may  be  lawfully  deposited  by  him,  as  if 
he  chooses  to  bury  money,  or  gold  and  silver  ornaments  in  hia 
own  land,  or  to  put  them  in  any  other  secret  place  of  deposit. 
Such  property  continues  in  the  possession  of  the  owner.  Pro* 
perty  may  be  considered  as  lost  or  as  ^^  not  in  the  possession  of 
any  person''  within  the  following  Explanation  when  it  is  derelict^ 


CRIMINAL  MISAPPROPRIATION  OP  PROPERTY.  861 

that  10^  wilfallj  thrown  sway  or  relinqnidied  by  the  owner ;  or 
when  money^  ornaments  or  grain^  &c.  have  been  hidden  by  some 
owner  sinoe  dead  and  the  secret  of  their  hiding-place  has  pe- 
rished. Property  which  the  owner  or  possessor  knows  not 
where  to  find,  as  timber  carried  away  by  a  flood,  stray  cattle,  a 
pnrse  dropped  on  the  highway,  &c.  may  also  be  considered  as 
being  no  longer  in  his  possession.  Property  which  the  owner 
has  not  relinqnished  and  which  he  knows  where  to  find  may  be 
so  situated  that  it  cannot  be  said  to  be  possessed  by  any  person, 
as  if  aboat^Ioad  of  goods  has  sank  in  a  known  place  in  the  bed 
of  a  navigable  river. 

All  such  property  is  protected  from  misappropriation  by 
those  who  find  it  by  the  present  Section. 

Explanation  2.  A  person  who  finds  property  not 
in  the  possession  of  any  other  person,  and  takes  such 
property  for  the  purpose  of  protecting  it  for,  or  of 
restoring  it  to,  the  owner,  does  not  take  or  misappro- 
priate it  dishonestly,  and  is  not  guilty  of  an  offence ; 
but  he  is  guilty  of  the  oflfence  above  defined,  if  he 
appropriates  it  to  his  own  use  when  he  knows  or  has 
the  means  of  discovering  the  owner,  or  before  he 
has  used  reasonable  means  to  discover  and  give  notice 
to  the  owner,  and  has  kept  the  property  a  reasonable 
time  to  enable  the  owner  to  claim  it. 

What  are  reasonable  means  or  what  is  a  reasonable 
time  in  such  a  case  is  a  question  of  fact.- 

It  is  not  necessary  that  the  finder  should  know  who 
is  the  owner  of  the  property,  or  that  any  particular 
person  is  the  owner  of  it :  it  is  sufficient  if,  at  the 
time  of  appropriating  it,  he  does  not  believe  it  to  be 
his  own  property,  or  in  good  faith  believe  that  the 
real  owner  cannot  be  found. 

IUu9iraHom9. 

(a)  A  finds  a  Rapee  on  the  high  road.  Not  knowing  to  whom 
the  Bupee  belongs,  A  picks  up  the  Bupee.  Here  A  has  not  com« 
mitted  the  offence  defined  in  this  Section. 

If  a  man  finds  property  that  has  been  actually  lost,  or  which 

is  reasonably  supposed  by  him  to  have  been  lost,  his  possessioA 

3  A 


362  CHAPTER  xvn. 

of  such  property  is  lawful^  and  he  commits  no  offence  so  long 
as  his  purpose  is  honesty  that  is^  while  he  takes  and  keeps  the 
goods  to  prot.ect  and  restore  them  to  the  true  owner.  But 
when  he  knows  that  the  goods  have  some  owner  (whether  the 
particular  person  who  is  the  owner  is  known  to  him  or  not)  and 
he  appropriates  the  property^  he  becomes  an  offender. 

(d)  A  sees  Z  drop  his  purse  with  money  in  it.  A  picks  up  the 
purse  with  intention  of  restoring  it  to  Z,  but  afterwards  appropriates 
it  to  his  own  use.     A  has  committed  an  offence  under  this  Section. 

(e)  A  finds  a  purse  with  money,  not  knowing  to  whom  it  belongs ; 
he  afterwards  discovers  that  it  belongs  to  Z,  and  appropriates  it  to 
his  own  use.     A  is  guilty  of  au  offence  under  this  Section. 

And  if  he  has  the  means  of  finding  the  owner^  and  he  appro- 
priates the  property  without  using  those  means^  he  is  guilty. 

(b)  A  finds  a  letter  on  the  road,  containing  a  bank  note.  From 
the  direction  and  contents  of  the  letter  he  learns  to  whom  the  note 
belongs.  He  appropriates  the  note.  He  is  guilty  of  an  offence 
under  this  Section. 

(c)  A  finds  a  cheque  payable  to  bearer.  He  can  form  no  conjec- 
ture as  to  the  person  who  has  lost  the  cheque.  But  the  name  of  the 
person  who  has  drawn  the  cheque  appears.  A  knows  that  this  per- 
son can  direct  him  to  the  person  in  whose  favor  the  cheque  was 
drawn.  A  appropriates  the  cheque  without  attempting  to  discover 
the  owner.     He  is  guilty  of  an  offence  under  this  Section. 

When  property  is  merely  mislaid^  being  put  down  and  left 
by  mistake  in  a  house^  shop^  carriage^  &c.^  under  circumstances 
which  will  enable  the  owner  to  know  the  place  where  he  has 
left  it,  and  to  which  he  will  naturally  return  for  it ;  the  person 
who  finds  the  property  may  reasonably  expect  to  be  able  to 
restore  it  to  the  owner.  A  misappropriation,  under  such 
circumstances,  may  justify  the  Court  in  convicting  the  finder 
of  this  offence. 

It  may  be  that  the  finder  neither  knows  nor  has  any  such 

means  as  we  have  just  supposed  of  knowing  the  owner.     Even 

in  this  case  he  will  be  guilty  if  he  converts  the  property  to  his 

own  use  before  he  has  endeavoured  to  discover  the  owner  or 

has  waited  to  enable  the  owner  to  claim  the  property. 

(f)  A  finds  a  valuable  ring,  not  knowing  to  whom  it  belongs. 
A  sells  it  immediately  without  attempting  to  discover  the  owner. 
A  is  guilty  of  an  offence  under  this  Section. 


CRIMINAL  MISAPPROPRIATION   OF   PROPERTY.   363 

It  is  a  question  of  fact  whether  he  has  done  what  an  honest 
man  may  reasonably  be  expected  to  do .  before  treating  the 
property  as  his  own.  It  should  be  ascertained  whether  he  had 
not  reason  to  believe  that  the  owner  could  be  found.  Evidence 
of  his  previous  acquaintance  with  the  ownership  of  the  parti- 
cular thing,  the  place  where  it  is  founds  or  the  nature  of  the 
marks  upon  it^  will  be  materiaU  In  some  cases  the  ownership 
would  be  apparent^  in  others  it  would  appear  only  after  exami- 
nation.  It  may  be  presumed  that  the  finder  would  examine  the 
property  at  the  time  of  the  finding. 

The  finder  is  not  allowed  to  appropriate  the  property  until 
he  believes^  in  good  faith^  after  waiting  a  reasonable  time  and 
using  reasonable  means  to  discover  the  owner^  that  the  real 
owner  does  not  exist  or  cannot  be  founds  and  therefore  that  the 
property  belongs  to  himself  as  the  finder.  But  it  seems  that  a 
reasonable  use  of  the  property  in  the  mean  time  and  before  the 
appearance  of  the  real  owner,  is  not  a  dishonest  conversion  of 
it  to  the  finder's  own  use,  provided  he  omits  no  proper  means 
of  finding  the  owner. 

404.  Whoever  dishonestly  misappropriates  or  con- 
verts to  his  own  use  property, 
ti?n"^f^?^'iert?^S?iSi'fe  knowing  that  such  property 
Sf^hu^^?.®'*^^*^^^^*™*  w^^  i^  *1^^  possession  of  a  de- 
ceased person  at  the  time  of 
that  person's  decease,  and  has  not  since  been  in  the 
possession  of  any  person  legalljr  entitled  to  such  pos- 
session, shall  be  punished  with  miprisonment  of  eithei? 
description  for  a  term  which  may  extend  to  three 
years,  and  shall  also  be  liable  to  fine,  and  if  the 
offender  at  the  time  of  such  person's  decease  was  em- 
ployed  by  him  as  a  clerk  or  servant,  the  imprisonment 
may  extend  to  seven  years. 

Illustration. 
Z  dies  in  possession  of  furniture  and  money.     His  servant  A,  before 
the  money  comes  into  the  possession  of  any  person  entitled  to  such 
possession,   dishonestly   misappropriates  it.     A  has  committed  the 
offence  defined  in  this  Section. 

3  A  2 


3CA  CHAPTER   XVII. 

This  Section  relates  to  a  description  of  property  peculiarly 
needing  protection.  The  offence  consists  in  the  pillaging  of 
moveable  property  daring  the  interval  which  elapses  between 
the  time  when  the  possessor  of  the  property  dies^  and  the  time 
when  it  comes  into  the  possession  of  some  person  or  officer 
anthorized  to  take  charge  of  it.  The  proof  shonld  be  that  the 
property  belonged  to  or  was  in  the  possession  of  the  deceased 
person  at  the  time  of  his  death,  and  that  it  has  since  been 
misappropriated  or  converted  to  his  own  use  by  a  person  who 
knew  or  had  reason  to  know  that  it  belonged  to  the  deceased. 
If  there  is  an  executor  or  a  curator  appointed^  in  whom  the 
property  has  vested  and  who  has  taken  possession^  the  offence 
is  theft^  not  misappropriation. 

When  the  offence  is  aggravated  because  it  is  committed  by  a 
clerk  or  servant,  there  must  be  proof  that  the  clerk  or  servant 
was  in  the  service  at  the  time  of  the  death. 


OF  CRIMINAL  BREACH  OF  TRUST. 

This  offence  like  the  offence  of  Criminal  Misappropriation  is 
characterised  by  an  actual  fraudulent  appropriation  of  property. 
There  is  not  originally  a  wrongful  taking  or  inoving  as  in  thefb, 
but  the  offence  consists  in  a  wrongful  appropriation  of  proper- 
ty^  consequent  upon  a  possession  which  is  lawful. 

The  offence  is  distinguishable  from  Criminal  Misappropriation, 
because  the  subject  of  it  is  not  property,  which  by  some  casual* 
ty  or  otherwise^  but  without  criminal  means,  comes  into  the 
offender's  possession ;  but  property  which  is  entrusted  to  the 
offender  by  the  owner  or  by  other  lawful  authority  and  which 
the  offender  holds  subject  to  some  duty  or  obligation  to  apply 
it  according  to  the  trust. 

Cases  of  Embezzlement  under  the  English  law  appear  to  fall 
under  this  head  of  the  Penal  Code. 


CRIMINAL  BKBACH  OF  TRUST,  366 

405.  Whoever,  being  in  any  manner  entrusted 
cMminaitNreftohoftrart.  with  property  or  witli  any  do- 
minion over  property,  dishonestly  misappropriates 
or  converts  to  his  own  use  that  property,  or  dishonestly 
uses  or  disposes  of  that  property,  in  violation  of  any 
direction  of  law  prescribing  the  mode  in  which  such 
trust  is  to  be  discharged,  or  of  any  legal  contract, 
express  or  implied,  which  he  has  made  touching  the 
discharge  of  such  trust,  or  wilfully  suffers  any  other 
person  so  to  do,  commits  **  criminal  breach  of  trust.'* 

Ulustrafions. 

(a)  A,  being  executor  to  the  will  of  a  deceased  person,  dishonestly 
disobeys  the  law  which  directs  him  to  divide  the  effects  according  to 
the  will,  and  appropriates  them  to  his  own  use.  A  has  committed 
criminal  breach  of  trust. 

(b)  A  is  a  warehouse  keeper.  Z,  going  on  a  journey,  entrusts 
his  furniture  to  A,  under  a  contract  that  it  shall  be  returned  on 
payment  of  a  stipulated  sum  for  warehouse  room.  A  dishonestly 
sells  the  goods.     A  has  committed  criminal  breach  of  trust. 

(c)  A,  residing  in  Calcutta,  is  agent  for  Z,  residing  at  Delhi. 
There  is  an  express  or  implied  contract  between  A  and  Z  that  all 
sums  remitted  by  Z  to  A  shall  be  invested  by  A  according  to  Z's 
direction.  Z  remits  a  lac  of  Eupees  to  A,  with  directions  to  A,  to 
invest  the  same  in  Company's  paper.  A  dishonestly  disobeys  the 
directions,  and  employs  the  money  in  his  own  business.  A  has 
committed  criminal  breach  of  trust. 

(d)  But  if  A,  in  the  last  illustration,  not  dishonestly,  but  in  good 
faith,  believing  that  it  will  be  more  for  Z's  advantage  to  hold  shares 
in  the  Bank  of  Bengal,  disobeys  Z's  directions,  and  buys  shares  in  the 
Bank  of  Bengal  for  Z,  instead  of  buying  Company's  paper,  here, 
though  Z  should  suffer  loss,  and  should  be  entitled  to  bring  a  civil 
action  against  A  on  account  of  that  loss,  yet-  A,  not  having  acted 
dishonestly,  has  not  committed  criminal  breach  of  trust. 

(f)  A,  a  revenue  officer,  is  entrusted  with  public  money,  and  is 
either  directed  by  law,  or  bound  by  a  contract,  express  or  implied, 
with  the  Government,  to  pay  into  a  certain  treasury  all  the  public 
money  which  he  holds.  A  dishonestly  appropriates  the  money,  A 
has  committed  criminal  breach  of  trust. 

(f)  A,  a  carrier,  is  entrusted  by  Z  with  property  to  be  carried  by 
land  or  by  water.  A  dishonestly  misappropriates  the  property.  A 
has  committed  criminal  breach  of  trust. 

The  offence^  as  here  defined^  appears  to  inclade  any  dishonest 
misappropriation  by  persons  in  whom  confidence  is  placed  as  to 
the  custody  or  application  of  particular  property  whether  it  be 
by  legal  authority  or  private  contract  or  consent.     Persons  who 


86G  CHAPTER  XVII. 

as  clerks,  agents,  servants  or  otherwise,  under  whatsoever  name, 
have  a  confidence  reposed  in  them  by  their  employers  and  are, 
whether  in  the  ordinary  course  of  their  employment  or  only 
occasionally,  entrusted  with  property,  and  persons  whose  em- 
ployment does  not  extend  beyond  the  particular  occasion  on 
which  they  are  so  entrusted,  seem  to  be  within  the  Section. 
Those  who  are  called,  technically,  trustees,  if  they  commit  a 
breach  of  trust,  are  responsible  as  criminals  for  acts  done  by 
them  dishonestly  for  their  own  gain  to  the  despoiling  of  the 
persons  for  whom  they  are  in  trust,  or  for  acts  causing  wrong- 
ful gain  to  themselves  or  wrongful  loss  to  such  persons.  The 
following  Sections  (407— 409)  make  special  provisions  for  various 
cases  in  which  property  is  entrusted  to  agents  or  contractors 
who  commit  this  offence. 

The  definition  includes  those  who  are  entrusted  in  any 
manner  with  property,  as  warehouse-keepers,  Ac.  who  are 
entrusted  only  with  the  possession  or  custody  of  property* 
Persons  who  are  empowered  to  take  or  deliver  possession  of 
property  whether  such  power  is  derived  from  the  owner  or  from 
any  other  person,  and  persons  who  are  entrusted  with  any  do- 
minion over  property  are  also  included.  Property  which  ia 
bulky  or  which  cannot,  for  other  reasons,  be  delivered  from 
hand  to  hand,  is  usually  represented  by  some  writing  or  other 
thing.  Thus  the  key  of  the  warehouse  or  place  where  goods 
are  lodged,  the  bill  of  lading,  delivery  order,  or  other  document 
however  called,  which  is  used  in  the  ordinary  course  of  business 
to  show  the  possession  or  control  of  property  and  which  enables 
the  holder  to  transfer  or  receive  or  otherwise  deal  with  it,  are 
made  to  represent  the  property  itself.  A  person  entrusted 
with  such  a  document  or  thing  has  a  dominion  over  the  proper- 
ty thereby  represented. 

A  dishonest  misappropriation  or  conversion  is  essential  to 
this  offence.  Negligence  or  other  misconduct  causing  the  loss 
of  the  entrusted  property  may  make  the  person  entrusted  civilly 
responsible,  but  will  not  make  him  guilty  of  this  offence.    There 


CRIMINAL  BREACH   OF   TRUST.  367 

must  be  the  intention  to  cause  wrongful  gain  or  wrongful  loss 
to  constitute  a  criminal  breach  of  trust. 

A  person  in  charge  of  a  carriage  or  boat  which  plies  for  hire, 
or  of  a  mill,  or  machine,  Ac.  who  uses  the  property  entrusted  to 
him  for  his  own  gain,  dishonestly  misappropriating  the  money 
which  he  receives  for  such  use,  is  within  this  Section. 

"  Or  wiJfally  suflfers  any  other  persons,  &c.'^  Trustees  or 
others  having  charge  of  property  are  not  criminally  answer- 
able for  the  acts  of  agents  employed  by  them  in  relation  to  such 
property ;  but  if  they  knowingly  suffer  their  agents  to  deal  dis- 
honestly with  the  property,  they  commit  criminal  breach  of 
trust. 

406.    Whoever  commits  criminal  breach  of  trust 

Punishment  for  criminal     shall  be  punishcd  with  impri- 

breach  of  trust.  sonment  of  either  description 

for  a  term  which  may  extend  to  three  years,  or  with 

fine  or  with  both. 

The  evidence  in  support  of  a  charge  of  criminal  breach  of 
trust  must  show,  (1)  that  the  accused  person  was,  in  some  man- 
ner, entrusted  with  the  property  or  with  a  dominion  over  it. 
The  offence  consists  in  the  betrayal  of  some  trust  or  confidence 
reposed  in  the  offender.  Dealings  concerning  property  between 
independentr  persons  in  the  course  of  which  debts  or  claims  by 
one  against  the  other  arise  are  not  the  subject  of  this  offence. 
There  can  be  no  criminal  misappropriation  unless  some  trust 
or  confidence  exists.  (2)  It  must  be  proved  that  the  accused  has 
dishonestly  misappropriated  or  disposed  of  the  property  in  vio- 
lation of  his  duty.  As  to  the  proof  of  the  criminal  misappro- 
priation in  cases  where  money  has  been  misappropriated,  it  will 
often  be  of  the  following  kind  :  either  the  offender  has  wilfully 
made  false  entries  in  his  books  or  else  he  has  denied  or  wilfully 
omitted  to  acknowledge  the  receipt  of  the  money.  A  person  who 
keeps  true  accounts,  or  otherwise  duly  acknowledges  the  receipt 
of  money,  cannot  ordinarily  be  supposed  to  intend  to  commit  a 
criminal  breach  of  trust.     On  the  other  hand  the  mere  fact  of 


368  CHAPTER  XVII. 

his  making  an  entry  in  the  books  ofaccoant  will  not  protect 
him.  The  fact  of  not  paying  over  money  or  not  accounting 
for  it,  will  not  probably  of  itself  be  thought  safficient  to  justify 
a  conviction,  even  though  the  accused  person  sets  up  a  frivolous 
excuse  or  advances  a  claim  wholly  unfounded.  But  the  ab- 
sconding of  the  accused,  coupled  with  a  refusal  to  account  or  a 
false  account,  furnishes  strong  evidence  of  a  criminal  misappro- 
priation of  the  money. 

If  the  evidence  in  support  of  the  charge  leaves  it  doubtful 
whether  the  offence  which  has  been  committed  is  thefb  or  cri- 
minal breach  of  trust,  the  Court  may  nevertheless  proceed  to 
judgment  and  award  punishment  (see  Section  72). 

407.  "Whoever  being  entrusted  with  property  as 
Criminal  breach  of  tmrt  by    »  Carrier,  wharfinger,  or  ware- 

a  oarriep.  whapflnKep,  Ac.  house-keoper  commits  criminal 

breach  of  trust  in  respect  of  such  property  shall  be 
punished  with  imprisonment  of  either  description  for 
a  term  which  may  extend  to  seven  years  and  shall 
also  be  liable  to  fine. 

Those  who  receire  property  under  a  contract  express  or  im- 
plied to  carry  it  or  to  keep  it  in  safe  custody  are  by  this  Section 
made  punishable  for  a  criminal  breach  of  duty  with  respect  to 
such  property.  Carriers  by  water  who  run  their  boats  or  ves- 
sels ashore,  intending  to  misappropriate  the  cargo,  are  punish- 
ed by  a  subsequent  Section  (see  Section  439.) 

408.  Whoever,  being  a  clerk  or  servant,  or  em- 
criminai  breach  of  tpuBt  by    ploycd  as  a  clerk  Or  scrvant, 

» clerk  OP  aervant.  g^jj^d  being  in  any  manner  en- 

trusted in  such  capacity  with  property  or  with  any 
dominion  over  property,  commits  criminal  breach  of 
trust  in  respect  of  that  property,  shall  be  punished 
with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  seven  years,  and  shall  also  be 
liable  to  fine. 

A  clerk  or  servant  who  takes  his  maater^s  property  is  punish- 
able for  theft.  (See  Section  381.)    The  present  provision  seems 


CRIMINAL  BREACH  OF  TRUST.  369 

to  apply  to  cases  in  which  there  is  some 'special  trast^  as  where 
the  clerk  or  servant  is  entrosted  with  his  master's  property  that 
he  may  sell  or  dispose  of  it^  or  where  he  is  appointed  to  collect 
money  and  to  pay  it  over  to  his  employer^  &c.  The  criminal 
misappropriation  by  sach  person  of  the  particular  property  en-^ 
trusted  to  him^  is  an  offence  here  made  punishable  in  the  same 
manner  as  the  taking  of  his  master's  property  by  a  servant  when 
the  property  taken  is  not  in  his  possession  or  charge  in  the  line 
of  his  service  or  employment^  as  the  theft  by  a  menial  servant 
of  money  or  other  property  from  his  master's  house.  Confi- 
dential persons  such  as  are  employed  by  bankers  in  the  Mofns« 
«il  to  convey  remittances  in  specie^  who  appropriate  the  money 
to  their  own  use  (alleging  that  it  has  been  taken  from  them  by 
robbers)  would,  it  seems^  be  punishable  under  this  or  the  last 
preceding  Section. 

409.    Whoever,  being  in  any  manner  entrusted 

^  ,   ,,_^  ^  ^, ,^      with  property,   or  with   any 

pnbuo  serTMit,  op  by  banker,     dominion   over  property,    in 

merohanty  or  agent.  v.  •»  ^    *         ut 

his  capacity  of  a  pubuc  ser- 
vant or  in  the  way  of  his  business  as  a  banker, 
merchant,  factor,  broker,  attorney,  or  agent,  commits 
criminal  breach  of  trust  in  respect  of  that  property, 
shall  be  punished  with  transportation  for  life,  or 
with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  ten  years,  and  shall  also  be  liable 
to  fine. 

The  criminal  breach  of  trust  which  is  here  punished  is  com- 
mitted  only  when  the  banker^  merchant,  &c.  is  entrusted  in  the 
way  of  his  business  with  property  or  with  documents  which 
give  him  a  dominion  over  property,  and  not  otherwise.  It 
seems  that  the  property  must  be  entrusted  to  him  in  such  man- 
ner that  he  becomes  subject,  by  contract,  express  or  implied,  or 
by  force  of  law,  to  a  certain  duty  in  regard  to  it.  (See  Illustra-> 
tion  (c)  of  Section  405.)  A  factor  or  agent  who  sells  the  goods 
of  his  employer  and  receives  the  money  on  his  behalf,  if  he 
commits  a  criminal  breach  of  trust  by  dishonestly  appropriat- 
3  B 


370  CHAPTER  XVII. 

ing  his  principaPs  money,  will  be  punishable  under  this 
Section.  But  the  relation  between  a  banker  and  his  customer 
is  not  necessarily  of  the  same  fiduciary  kind.  The  money 
which  the  customer  places  in  the  banker's  custody  becomes 
the  banker^s  money ;  he  may  employ  it  as  he  pleases  and 
he  commits  no  breach  of  trust  even  if  he  puts  it  in  jeopardy ; 
only  he  is  of  course  answerable  for  the  repayment  of  the 
amount  which  he  has  received.  It  seems  that  a  banker  would 
be  criminally  Uable  under  the  present  Section  only  in  case  he 
undertook  some  particular  duty  (in  the  way  of  his  business)  in 
relation  to  the  property  entrusted  to  him ;  as  if  he  received 
Government  Paper  or  other  Securities  into  his  custody,  under- 
taking to  keep  them  safely,  and  to  receive  the  interest,  &o. 


OP  THERBCBIVINa  OP   STOLEN    PROPERTY. 

The  receiver  of  stolen  property  though  not  strictly  a  partici- 
pator in  the  offence  by  which  the  property  has  been  acquired, 
facilitates  the  commission  of  that  offence  or  at  least  renders  its 
detection  more  difficult,  by  aiding  the  thief  in  the  disposal  of 
the  property.  But  the  Code  does  not  treat  the  receiver  as  an 
accessory  or  abettor,  or  as  an  offender  against  public  justice. 
It  makes  the  offence  of  receiving  stolen  property  a  substantive 
offence,  and  punishes  the  receiver,  not  always  as  it  punishes  the 
principal  offender,  but  with  a  punishment  more  or  less  severe 
according  to  circumstances. 

410.  Property  the  possession  whereof  has  been 
stolen  pty  transferred  by  theft,  or  by 
^^^^^  '  extortion,  or  by  robbery,  and 
property  whioh  has  been  criminally  misappropriated, 
or  in  respect  in  which  the  oflfence  of  criminal  breach 
of  trust  has  been  committed,  is  designated  as  "  stolen 
property.'*  But  if  such  property  subsequently  comes 
into  the  possession  of  a  person  legally  entitled  to  the 
possession  thereof,  it  then  ceases  to  bo  stolen  property. 


RECEIVING  STOLEN   PEOPERTY.  371 

An  extended  signification  is  given  to  the  words  ''  stolen  pro- 
perty/^ which  are  used  in  the  four  snbseqaent  Sections.  Not 
only  things  which  have  been  jatolen,  extorted  or  robbed,  bat 
also  things  which  have  been  obtained  by  criminal  misappropri- 
ation or  criminal  breach  of  trust  are  within  the  meaning  here 
assigned  to  these  words. 

^'But  if  such  property  subsequently  comes,  Ac.''  The 
rules  of  the  civil  law  applicable  to  the  transfer  and  ac- 
quisition of  moveable  property,  must  be  consulted  to  ascertain 
when  ''  stolen  property^'  ceases  to  be  so,  by  reason  of  its  coming 
'^  into  the  possession  of  a  person  legally  entitled  to  the  pos- 
session thereof/^ 

Suppose  goods  are  found  by  the  owner  in  the  pockets  of  a 
thief  or  on  his  person,  and  the  owner  takes  the  goods  again 
into  his  possession,  bub  afterwards,  for  the  purpose  of  detecting 
the  receiver,  gives  them  back  to  the  thief,  desiring  him  to  sell 
them  as  he  had  sold  other  stolen  property.  These  goods  having 
ceased  to  be  ^'  stolen  property,"  the  person  who  receives  or 
buys  them  from  the  thief,  however  guilty,  is  not  a  receiver  of 
such  property. 

411.    Whoever    dishonestly    receives    or    retains 
Di«iLone.tiyreoeiving»toien    any  stolcn  property,  knowing 
property.  ^^  having  reason  to  believe 

the  same  to  be  stolen  property,  shall  be  punished 
with  imprisonment  of  either  description  for  a  term 
which  may  extend  to  three  years,  or  with  fine,  or 
with  both. 

There  must  be  a  taking  into  his  possession  of  the  ''  stolen 
property"  by  the  receiver ;  but  a  manual  possession  or  a  touch- 
ing of  the  property  is  not  essential  to  constitute  a  receipt  of  it. 
If  the  stolen  property  has  come  under  the  control  of  the  re- 
ceiver, as,  if  it  is  in  the  hands  of  a  person  whom  he  can  com- 
mand in  respect  to  it,  he  has  received  it.  If  the  ^'  stolen  proper- 
ty" has  been  brought  without  permission  to  the  house  of  a 
person  who  retains  it  after  he  becomes  aware  that  it  has  been 
stolen  he  will  be  punishable  under  this  Soction, 
3  B  2 


372  CHAPTBB   XVII. 

The  receiver  should  know  or  have  reason  to  believe  the  goods 
to  be  stolen^  but  it  is  immaterial  whether  or  not  he  knows  who 
stole  them*  The  offence  made  punishable  is  not  the  receiving 
'  stolen  property  from  any  particular  person^  but  the  receiving 
such  property  knowing  it  to  be  stolen.  The  receiver  must  have 
a  dishonest  intention;  but  whether  he  takes  the  goods  for 
some  purpose  of  profit  or  gain  to  himself^  or  merely  to  assist 
the  thief^  or  in  order  to  conceal  them,  his  taking  cannot  but  be 
intended  to  cause  wrongful  gain  or  wrongful  loss^  and  is  there- 
fore dishonest,     (See  Section  24.) 

To  support  a  charge  of  receiving  stolen  property,  the  prose- 
cutor must  prove,  1st,  that  the  property  is  "  stolen  property,'' 
that  is,  that  it  comes  within  the  definition  in  Section  410,  hav« 
Ing  been  obtained  by  some  one  of  the  offences  there  mentioned ; 
2nd,  the  receiving  or  retaining  of  the  property  by  the  accused 
person ;  3rd,  the  guilty  knowledge  of  the  accused.  His  dishonest 
purpose  may  be  inferred  if  the  above  matters  are  satisfactorily 
proved  and  left  unexplained.  As  to  the  proof  of  the  receiver's 
guilty  knowledge,  firom  the  caution  necessary  in  this  sort  of 
traffic,  it  must  often  happen  that  no  express  disclosure  is  made 
to  him,  and  yet  that  he  knows  the  property  to  have  been  stolen 
as  well  as  if  he  had  actually  witnessed  the  theft.  In  this  as  in 
other  cases,  it  is  sufficient  if  circumstances  are  proved  which,  to 
persons  of  ordinary  understanding  in  the  situation  of  the 
accused  person,  must  have  led  to  the  conclusion  that  the  pro- 
perty was,  stolen  or  otherwise  dishonestly  acquired.  Thus,  if 
it  is  shown^  that  the  accused  received  large  quantities  of  money^ 
ornaments,  bundles  of  clothes  of  various  kinds  or  moveables 
of  any  sort  from  persons  destitute  of  property  and  without  any 
apparent  lawful  means  of  acquiring  it,  and  especially  if  it  is 
proved  that  the  property  was  brought  at  untimely  hours  and 
under  circumstances  of  evident  concealment^  it  may  well  be 
concluded  that  it  was  received  with  a  full  understanding  of  the 
guilty  mode  by  which  it  has  been  acquired.  And  this  will  be 
still  further  confirmed,  if  it  appears  that  the  property  was  pur- 
chased for  a  sum  far  below  its  real  value,  or  was  concealed  in 


RECEIVING  STOLEN  PEOPERTY.        873 

places  not  usually  employed  for  keeping  such  property^  or  if  the 
marks  on  it  are  effaced^  or  if  false  or  inconsistent  stories  are 
told  as  to  the  mode  of  its  acquisition.  Another  circumstance 
from  which  such  guilty  knowledge  may  be  inferred  is^  that  the 
property  has  been  received  from  a  notorious  thief  or  one  from 
whom  stolen  property  has,  on  previous  occasions,  been  received. 

If  stolen  property  is  found  soon  after  the  thefb  in  the  posses- 
sion of  a  person  who  cannot  give  a  reasonable  account  of  the 
way  by  which  he  became  possessed  of  it,  it  is  fair  to  presume 
that  he  is  himself  the  thief.  K  the  evidence  leaves  it  doubtful 
whether  the  Recused  is  guilty  of  theft  or  of  receiving  stolen 
property,  he  may  be  adjudged  guilty  and  punished  under  the 
72nd  Section. 

The  presumption  arising  irom  the  possession  of  stolen  pro« 
perty  is  one  which  is  strengthened,  weakened  or  rebutted  by 
concomitant  circumstances,  such  as  the  length  of  time  elapsing, 
vicinity  to  the  spot,  nature  of  the  property,  and  the  behaviour 
of  the  accused.* 

As  to  the  punishment  there  will  be  many  degrees  of  crimin- 
ality among  this  class  of  offenders.  Within  the  limits  here 
mentioned,  which  range  from  rigorous  imprisonment  for  three 
years  to  fine,  the  Courts  may  award  a  punishment  proportioned 
to  the  offence  of  the  receiver  and  his  complicity  in  the  princi- 
pal offence  by  which  the  stolen  properly  has  been  acquired. 

412.    Whoerer  dishonestly  receives  op  retains  any 

stolen  property,  the  possession 


Dishonestly,  reoeiving  pro* 

son  to  believeto  havebeentranB- 


perty  stolen  in  the  conunis*      WherOOf  hc   knOWS  Or  haS  red- 
sion  of  a  daooity.